For years, many of us were concerned about how much British state surveillance was authorised under RIPA, the Regulation of Investigatory Powers Act 2000. Access to information presented as essential for national security and preventing major crime was used, for example, to check whether people were sneaking into the wrong school catchment area. However, it wasn’t until the Snowden revelations came out that the public even started to realise just how much could be scrutinised.
Even then, there was a very lacklustre reaction from within the UK, especially when compared to the response in countries like the USA and Germany. Why is this? Well, probably because whereas they have experiences of the Stasi and McCarthyism, we have James Bond.
But we have now at last reached agreement that RIPA needs to be rewritten, although many of us have a huge concern that the Home Secretary will follow the approach she tried to use in the rejected communications data bill, and seek to extend powers very widely. Last time, her efforts led a cross-party cross-House committee to describe the Home Office information as fanciful and misleading — will she have learned her lesson this time?
But even if RIPA were fixed, to protect privacy as well as security, there would still be a gaping hole in our protections from excessive state surveillance. It’s a well hidden hole. So most people are simply unaware of its existence. And appropriately enough, it dates back to 1984.
The Telecommunications Act 1984 is an important, but somewhat technical piece of legislation, detailing how BT was to be privatised, and creating Oftel (now Ofcom). If you read it, you can go through 87 pages of technical language about the duties of the Director General of Telecommunications, what should happen about billing disputes and much more. And then you reach a very interesting clause, tucked away in miscellaneous, after the worthy power to provide grants to promote the interests of disabled persons. So well tucked away, in fact, that it was never even debated in parliament.
Clause 94 Directions in the interests of national security etc. is an astonishing piece of legislation. It’s worth reading in full here .
It allows any Secretary of State to give to Ofcom or any providers of public electronic communications networks such directions of a general character as appear to the Secretary of State to be necessary in the interests of national security or relations with the government of a country or territory outside the United Kingdom. They can also be instructed to do, or not to do any particular thing specified, and they have to do this notwithstanding any other duty they would otherwise have under telecommunications legislation.
That’s a pretty astonishingly broad power — such people can be ordered to do or not do anything at all, and not even just in the interests of our own national security, but if it would help relations with another country. So if the US — or Russia or China, in theory — asked us to make a telecoms company put US-supplied black boxes of unknown purpose on their network, the government has the power do that without even having to ask for a reason.
But there is a safeguard. The law says that the Secretary of State has to lay before parliament a copy of every such direction. This would then allow parliament to be alert to any misuse … except that the clause goes on to say unless [the Secretary of State] is of the opinion that disclosure of the direction is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of any person.
So if it might risk our national security, which is fair enough, or might annoy someone else, be they another country, a company or an individual, then it is kept secret — no one is allowed to disclose anything about it.
So if the US asked us to make BT install some spyware, or to hand over user data, no one can be told about it if that would upset either the US or BT.
And in fact there has been no scrutiny of these orders. I spent some considerable time as an MP pushing on this, trying to find out how often these extraordinary powers were used, and who checked they were appropriate. I got nowhere, with the security minister James Brokenshire saying: If the question relates to section 94 of the Telecommunications Act, then I am afraid I can neither confirm nor deny any issues in relation to the utilisation or otherwise of section 94.
This urgently needs to be fixed. Is there a place for such powers for national security? Well, maybe — but there should be a case made for it based on evidence, and ideally a judge should approve the directions, in secret if necessary, but subject to substantial oversight — from someone allowed to tell us if they find any problems.
As it is now, we have secret, all-powerful directions, with no reporting and no oversight. Big Brother would be proud.
Telecommunications Act 1984
See Section 94 of the Telecommunications Act 1984 from legislation.gov.uk
Section 94: Directions in the interests of national security etc.
(1) The Secretary of State may, after consultation with a person to whom this section applies, give to that person such directions of a general character as appear to the Secretary of State to be necessary in the interests of national security or relations with the government of a country or territory outside the United Kingdom.
(2) If it appears to the Secretary of State to be necessary to do so in the interests of national security or relations with the government of a country or territory outside the United Kingdom, he may, after consultation with a person to whom this section applies, give to that person a direction requiring him (according to the circumstances of the case) to do, or not to do, a particular thing specified in the direction.
(2A) The Secretary of State shall not give a direction under subsection (1) or (2) unless he believes that the conduct required by the direction is proportionate to what is sought to be achieved by that conduct.
(3) A person to whom this section applies shall give effect to any direction given to him by the Secretary of State under this section notwithstanding any other duty imposed on him by or under Part 1 or Chapter 1 of Part 2 of the Communications Act 2003 and, in the case of a direction to a provider of a public electronic communications network, notwithstanding that it relates to him in a capacity other than as the provider of such a network.
(4) The Secretary of State shall lay before each House of Parliament a copy of every direction given under this section unless he is of opinion that disclosure of the direction is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of any person.
(5) A person shall not disclose, or be required by virtue of any enactment or otherwise to disclose, anything done by virtue of this section if the Secretary of State has notified him that the Secretary of State is of the opinion that disclosure of that thing is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of some other person.
(6) The Secretary of State may, with the approval of the Treasury, make grants to providers of public electronic communications networks for the purpose of defraying or contributing towards any losses they may sustain by reason of compliance with the directions given under this section.
(7) There shall be paid out of money provided by Parliament any sums required by the Secretary of State for making grants under this section.
(8) This section applies to OFCOM and to providers of public electronic communications networks.