International legal standards on surveillance and the Investigatory Powers Bill
Yvonne McDermott Rees
Law, Bangor University
A
number of recent judgments have set parameters on the interplay between the
right to privacy and state surveillance. Last December, the European Court of Human Rights established that those
authorising interception of communications must be able to verify the existence
of ‘reasonable suspicion’ that the
person concerned is planning, committing or has committed criminal acts or
other acts endangering national security. It also established that such
authorisations ‘must clearly identify a specific person to be placed under
surveillance or a single set of premises as the premises in respect of which
the authorisation is ordered.’
The Court of Justice of the European
Union, in
its Schrems decision, established
that granting public authorities to have access to the content of electronic
communications ‘on a generalised basis’ contravened the right to privacy.
These
decisions set clear parameters for governments to follow in their surveillance
activities. Yet, the Investigatory Powers Bill, which has just gone through its
second reading in Parliament, falls short of those benchmarks, as recently noted
by the United Nations Special Rapporteur
on the Right to Privacy.
The
Bill allows generalised surveillance through bulk interception warrants and
bulk equipment interference. It allows interception warrants to apply to groups
of persons or premises, and thus fails in the requirement of specificity. Most
importantly, perhaps, under the Bill, there is no need for a person (or group
of persons) to even be identified as a suspect or for there to be ‘reasonable
suspicion’ that they have committed, are committing, or are about to commit a
crime before their communications can be intercepted.
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