High Court limits the scope of general warrants under the Intelligence Act 1994

The Investigatory Powers Tribunal has held that general warrants cannot be used by the intelligence services to bulk surveil in a manner unless the purpose for the warrant is so specific as to be objectively ascertainable.

In the High Court on January 8 judgement was entered for the claimants responding to the question:

“Does section 5 of [the 1994 Intelligence Services Act] permit the issue of a ‘thematic’ computer hacking warrant authorising acts in respect of an entire class of people or an entire class of such acts?”

The Court found it did not.

In citing 250 year of caselaw the Court considered common law principles had well established an aversion to general warrants. They are simply to broad in scope, being able to apply to whoever or whatever the warrant searcher wishes accordingly:

It follows that a general warrant gives rise to an unlawful delegation of authority by the legally entrusted decision-maker to the executing official. This unlawful delegation breaches a fundamental right.

at p.30

It was up to the Secretary of State in this instance to decide the legality, proportionality and necessity of the application for a warrant and limit it in scope in so far as was absolutely necessary. Giving such discretion to an executing official in this case would be unlawful.

Further the Court stated plainly that the common law was strongly averse to statutory construction permitting such warrants to be lawful.

It went on to state:

The aversion to general warrants is one of the basic principles on which the law of the United Kingdom is founded. As such, it may not be overridden by statute unless the wording of the statute makes clear that Parliament intended to do so

at p.48

The Court then went on to provide further guidance as to what could or not be achieved by a warrant:

A warrant in respect of “any device used at the Acacia Avenue Internet Café during the period of six months from the date of issue of the warrant” would in our view be sufficiently specific, as would “anyone who appears on the FCDO Ruritanian diplomatic list during the period of six months from the date of the warrant”.”

at p.52

As for the impermissible broad brush approach:

“the mobile phone of any person conspiring to commit acts of terrorism”) would be insufficiently specific to satisfy the requirements of section 5(2). 

at p.53

The case represents a significant step in providing greater clarity around the restrictions on surveillance tools and the interpretation of legislation in light of the common law concerning general warrants.

A step towards safeguarding privacy, certainly, in the curtailment of investigatory powers in the bulk interception of communications. It also acts as a reinforcement of the checks and balances role of the Secretary of State in approving such tools to be used.

The Privacy International press release following the judgement can be found here.

Photo by Sora Shimazaki on Pexels.com

Developing a public interest defence to disclosures under the Offical Secrets Acts under English law – Part I

“It has now been
made clear beyond peradventure that members of the Security
Services owe a lifelong duty not to discuss their service experience
with the media….” Lord Kieth of Kinkel, The Spycatcher case at p.27, [1990] 1 AC 109

The above quote from the infamous Spycatcher case has long been entrenched under English Law.

However, it has been advanced that for Article 10 freedom of expression rights to be safeguarded there must be an implementation of a public interest defence to disclosing information that would otherwise be criminalised under the Offical Secrets Acts (“OSAs”).

Practically, cases such as that of Edward Snowden highlighted at an international level the need for such a defence to be clear, practical and consistently applied to ensure that they are effective at safeguarding the public interest and operating as a defence to disclosure in what can be the most sensitive of cases.

In the case of Shayler it was considered whether the provisions of the OSAs were compatible with Article 10 of the Convention. It was concluded that the provisions of the Act, whilst a prima facie limitation on Shayler’s right to freedom of expression, were a proportionate means of achieving a legitimate aim. The case highlighted the critical question- does our legislative framework sufficiently protect freedom of expression in this highly sensitive area? At that time it was consider it did, leaving the question of whether a public interest defence in disclosure was required to fall away.

As is, current OSA legislation does not yet provide a defence where public interest in the disclosure of information is advanced. Rather it has been left primarily unacknowledged by statute that this can cut both ways in article 10 cases where disclosures were made that would otherwise constitute criminal offences under the OSA’s.

It was in the Law Commission’s Report into antiquated spying laws published on 1 September 2020 that it was recommended a statutory public interest defence be introduced to the current framework. It was suggested that the means of the disclosure as well as the subject matter of the disclosure being in the public interest should be factors in the application of any defence.

However, the detail of the defence was not considered at length as it was considered that further consultation would be required for any recommendations to be made.

It is in the context that the campaign for such a defence has launched. Matrix’s Chamber’s press release reveals that person spearheading the campaign is “Janus Friis, a philanthropic technology entrepreneur”. Friis has instructed Mischon de Reya’s James Libson, Ben Brandon and Katy Colton and in turn Alex Bailin QC and Jessica Jones of Matrix Chambers. They are working with communications consultancy Powerscourt and have submitted a evidence to the Joint Committee on Human Rights.

The briefing paper for the campaign can be found here and provides an excellent analysis of the law and detail as to the intial form of the defence which is being lobbied for.

The Telegraph has coverage of this development.

Privacy concerns around Amazon’s Ring

“A home security product upscaled and diversified into law enforcement and integrated with video software brings with it some serious privacy concerns.”

What is the Ring?

door wooden bell old

The Ring is Amazon’s bestselling smart security device product line. The most notable of which is the Ring doorbell which allows users to monitor movement by their front doors, video and receive mobile notifications whenever someone presses the doorbell. Users can also benefit from an App which is installed on their mobile, monitors local news and allows social media style sharing with other Ring users.

Ring additionally offers security services, cross-selling into the wider security service market.

Ring and law enforcement

Recent controversy was sparked when it was found that the Ring in partnering with over 400 police departments in the United States. The extent of the Ring’s collaborative efforts extend to targeting ad words to users encouraging that they share live video feed footage with law enforcement. This in and of itself is a significant extension in police surveillance meriting further legislative scrutiny.

However, pair this with the fact that the Ring’s being dubbed as “the new neighborhood watch”- it becomes a little disconcerting.

It is well-established that people’s likeness is considered personal data and that the recording of individuals without their consent is potentially invasive. There are also civil liberties concerns regarding the police acquiring these live video feeds for their own use.

This has drawn the attention of the Senator for Massachusetts, Edward Markey, who recently published a letter sent to Amazons CEO Jeffery Bezos, highlighting civil liberties concerns with the Ring. This highlights issues previously raised in the United Kingdom in relation to the use of facial recognition software; its potential to racially profile individuals. Whilst this was considered by the Administrative Court to be too an intangible argument lacking sufficient supporting data, further scrutiny would be most welcome.

And it looks like further scrutiny seems forthcoming. In his letter Senator Markey highlights 10 key concerns around the Ring system, demanding a response from the Amazon CEO by 26 September 2019. We highly recommend readers consider the letter in its entirety here.

The privacy implications of using facial recognition software

The use of facial recognition software (“FRS”) in security and monitoring was thrust into the spotlight by the London Mayor Sadiq Khan, taking issue with a London developer over its installation in a King’s Cross site. In this post on the Privacy Perspective we consider the privacy and data protection issues with integrating FRS into security systems, an issue currently before the courts. Continue reading

Big brother is watching you, in compliance with the European Convention of Human Rights

Revisiting the case of Big Brother Watch and Others v. the United Kingdom

The operation of the UK’s surveillance services, MI5, MI6, GCHQ and the Metropolitan Police Service and their interaction with human rights (“Convention rights”) have historically been obscure to safeguard the interests of national security. The specifics of policy and practices when conducting national surveillance and its interaction with the private lives citizens have only come to light since the whistleblowing of Edward Snowden in 2013, catalyzing closer scrutiny of their potential to impinge upon the democratic freedoms.

Continue reading