Prime Minister Theresa May
Prime Minister Theresa May

Civil liberties watchdog Liberty is launching a legal challenge to what it describes as, “extreme mass surveillance powers” in the Government's new Investigatory Powers Act (IP Act).

The act has been dubbed the ‘Snoopers Charter' as it gives legal authority to the state to monitor UK citizens' web history and email, text messages and phone records in bulk as well as ‘hack' computers, phones and tablets when authorised.

Liberty is seeking a High Court judicial review of the core bulk powers in the IP Act – and calling on the public to help it take on the challenge by donating to the cause. A petition calling for its repeal has attracted more than 200,000 signatures.

The Investigatory Powers Act was passed by Parliament last year but  Liberty says that the Government failed to provide any evidence that such powers were necessary to prevent or detect crime. Liberty says it will now seek to challenge the lawfulness of the following powers, which it believes breach the public's rights:

  • Bulk hacking – the Act lets police and agencies access, control and alter electronic devices like computers, phones and tablets on in bulk, regardless of whether their owners are suspected of involvement in crime, leaving them vulnerable to further attack by hackers.
  • Bulk interception – the Act allows the state to read texts, online messages and emails and listen in on calls en masse, without requiring suspicion of criminal activity.
  • Bulk acquisition of everybody's communications data and internet history – the Act forces communications companies and service providers to hand over records of everybody's emails, phone calls and texts and entire web browsing history to state agencies to store, data-mine and profile at its will.

Martha Spurrier, director of Liberty, said: “Last year, this Government exploited fear and distraction to quietly create the most extreme surveillance regime of any democracy in history. Hundreds of thousands of people have since called for this Act's repeal because they see it for what it is – an unprecedented, unjustified assault on our freedom.”

“We hope anybody with an interest in defending our democracy, privacy, press freedom, fair trials, protest rights, free speech and the safety and cyber-security of everyone in the UK will support this crowdfunded challenge, and make 2017 the year we reclaim our rights,” Spurrier said.

In a GCHQ briefing prior to the bill being passed, an operative calling himself Peter told SC that the bulk retention powers were necessary to fight crime and terrorism.

He described what he says was an actual case where a mobile phone picked up after a firefight near Raqqa was investigated and because there were historic records held for the phone, these enabled identification of previously unknown associates connected to ISIS, who were prevented from engaging in terrorism.

And David Anderson QC, the UK's anti-terror law watchdog, gave his approval of the Investigatory Powers Bill (IPB) in a report titled ‘The Bulk Powers Review' for this very reason.

Anderson's 192-page report examined in detail a series of cases where GCHQ used bulk snooping on people's email, phone and internet use to save lives, and succeeded.

For this reason, the controversial law, which allows intelligence agencies to monitor people's online activities, was approved by Anderson who said there was a “proven operational case” for MI5, MI6 and GCHQ to continue in their bulk collection of data.

Likewise, Prime Minister Theresa May, who sparked the plans for the legislation in her time as Home Secretary said the report, “demonstrates how the bulk powers are of crucial importance.”

Early on in 2016, the government noted its contention that without retaining Internet Connection Records (ICRs – a record of the internet services that a specific device connects to such as a website or instant messaging application), it is not possible for law enforcement and security agencies to identify consistently who has sent a particular communication online, information often deemed necessary to carry out their work.

However the privacy watchdog contending this view on bulk data sets said in a statement: “This provides a goldmine of valuable personal information for criminal hackers and foreign spies. Using ‘bulk personal datasets' – the Act lets agencies acquire and link vast databases held by the public or private sector. These contain details on religion, ethnic origin, sexuality, political leanings and health problems, potentially on the entire population, and are ripe for abuse and discrimination.”

The announcement of the court battle comes just weeks after a landmark ruling from the EU Court of Justice (CJEU) rendered core parts of the Investigatory Powers Act effectively unlawful.

In a challenge to the Data Retention and Investigatory Powers Act (DRIPA) by MP Tom Watson, represented by Liberty, the CJEU ruled the UK Government was breaking EU law by indiscriminately collecting and accessing the nation's internet activity and phone records.

DRIPA required communications companies to store records of everybody's emails, texts, phone calls and internet communications and allowed multiple public bodies access to the data with no suspicion of serious crime or independent sign-off.

Judges ruled the DRIPA regime breached British rights because it:

  • Allowed indiscriminate retention of all communications data.
  • Did not restrict access to the purpose of preventing and detecting precisely defined serious crime.
  • Let police and public bodies authorise their own access, instead of requiring prior authorisation by a court or independent body.
  • Did not require that people be notified after their data had been accessed.
  • Did not require that the data be kept within the European Union.

DRIPA expired at the end of 2016 and the new Bill was introduced to retrospectively provide a legal framework for the state's activities– but Liberty says its powers are replicated and vastly expanded in the Investigatory Powers Act with, “no effort to counter the lack of safeguards found unlawful in the case."