Monday, March 28, 2016

Seminar 5 Position Statement: Dr.Yvonne McDermott Rees

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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