Report: A Democratic Licence to Operate (RUSI)

The Independent Surveillance Review (ISR) [1] was undertaken at the request of the then deputy Prime Minister partly in response to the allegation of mass surveillance made by Edward Snowden’s leaks of intelligence documents. The panel consisted of twelve members from government, industry, academia, civil society and Parliament, and was formed to assess the allegations with the primary focus on the interception and use of private communications and related data. The panel identified three key areas of consideration for the government,a heuristic of ten tests for the intrusion of privacy, and twenty concrete recommendations.

The three areas of considerations are the process of authorisation for an intrusion into a citizen’s life, an effective oversight regime to hold actors to account, and increased transparency of new legislation set before Parliament through more public deliberation. The ISR recommends a complete overhaul of the outdated and unnecessarily complex warrant system for surveillance to provide a clearer and more comprehensive system. The current patchwork oversight regime should be reformed and reorganised to be more streamlined, robust and systematic. Finally, the implicit secrecy granted to government is considered to be illegitimate and should be replaced by a transparant legislative procedures in Parliament.

To address these areas of concern effectively, the panel established a heuristic of ten tests for the intrusion of privacy. The tests clarify key legal principles such as the rule of law, and the concepts of necessity and proportionality. More specifically, they describe the limits to secrecy, the value of oversight, and the importance of international cooperation.

The concrete recommendations address areas such as legislation reform, the mandates for actors in surveillance, the importance safeguards, a new warranty regime, procedural issues, and establishing new official bodies. The first recommendation highlights the importance over a legislative reform into one dedicated act to replace the current patchwork of applicable laws and unclear definitions. Further, the panel recommends the establishment of new bodies, such as the Advisory Council for Digital Technology and Engineering and a new National Intelligence and Surveillance Office. The panel also recommends a more rigid system of warrants, differentiating between specific and bulk collection warrants, which would be overseen by independent judicial commissioners. Citizens should have the right to appeal to the Investigatory Powers Tribunal, which itself should operate more transparently.

The panel criticises antiquated laws that has not kept pace with technological progress. The trade-offs between national security, public safety and individual privacy in Britain’s technology-dependent and data-based society must be done in an informed and transparant manner.

 

[1] Royal United Services Institute for Defence and Security Studies, “A Democratic Licence to Operate”. July 2015. Available at: https://www.rusi.org/downloads/assets/ISR-Report-press.pdf.