Theresa May: Snoopers’ Charter won’t ban encryption, but companies must provide data
Background: What’s the Snoopers’ Charter?
In 2013, Theresa May proposed a piece of legislation called the draft Communications Data Bill (dubbed the Snoopers’ Charter), which the Liberal Democrats blocked during the coalition government. November’s proposed bill is a revived version of that bill – back from the dead, edges smoothed off and a new judge-friendly face installed.
Another key piece of prior legislation to be aware of is the Data Regulation and Investigatory Powers Act (DRIPA), pushed through in July 2014. This allowed security services to have access to internet and phone records, but was challenged by Labour’s Tom Watson and the Conservatives’ David Davis. It was subsequently ruled as illegal by the High Court.
When the High Court rules something as illegal, you might suspect that boundaries have been overstepped. The judges said that the Act failed to provide “clear and precise rules to ensure data is only accessed for the purpose of preventing and detecting serious offence”. The government was told it needed to come up with new legislation by March 2016, hence today’s proposal.
What’s changed since the original Snoopers’ Charter?
One of the big changes is a “double lock” on approval of interception. This involves the appointment of a specially appointed panel of judges, who will be responsible for authorising the police before they can access the content of an individual’s information. For the most intrusive warrants to be approved, they’ll need to go through a secretary of state and then confirmed by a judge. Any warrant covering an MP will need to be approved by the prime minister.
From the authorities’ perspective, this means consolidation of a gangly system currently fragmented across three different commissioners. The Home Office says this will improve the transparency of the intelligence service’s activities, but critics are saying this new process is unwieldy. The judicial procedure will not apply to “urgent cases” – so there are inevitably questions about what does and doesn’t consist of an urgent case. May has said that access to a journalist’s source will require a warrant, for example, but if that information was deemed “urgent” it would suggest that a secretary of state can sign a warrant without a judge.
At the moment, senior ministers including the home secretary can sign warrants allowing security services to look at the contents of communications. Over 2,700 of these were signed last year. The new proposal means that appointed judges will be able to overrule ministers, which in theory would give independent oversight to the process. In reality, this process may not always be so clean cut. May has said that the legislation will include cases where a warrant applies after a secretary of state approves it, as long as a judge subsequently confirms it.
Former Lib Dem leader Nick Clegg has said there may be flaws “under the bonnet” of the new legislation and that the process may be cumbersome. Technology journalist Adam Banks has questioned how forcing a judge to sign after a warrant has been issued would work in practice.
Will the government be able to look at my browsing history whenever it wants?
Yes and no. May has said that the security services won’t have full access to look through your browsing content, but will instead be able to access the domains you’ve visited.
This means they will be able to see if you’ve visited www.bbc.co.uk, for example, but not the page itself. There will also be information on where you’ve visited pages from, along with calls you’ve made, who you’ve sent text messages to – essentially the “who, what, where and when” of your communication information.
To get access to the actual content of those communications will require a warrant. That’s where the judges and content warrants come in.