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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, November 18, 2016 Related reading: Notes from the IAPP Europe Managing Director, 16 April 2021




Greetings from Brussels,

I spy with my little eye a U.K. Investigatory Powers Bill coming into effect imminently. A couple of years in the making, the U.K. government is poised to dramatically ramp up surveillance of British web activity under new law. The IP Bill cleared the final hurdle in the House of Lords this Wednesday. Now that both houses of Parliament have reached an agreement, PM Theresa May — who in her role as the former home secretary championed the bill on numerous fronts — will see her plans to grant greater surveillance powers to Britain’s spook agencies, police forces, and other public bodies finally become the norm.

Commonly referred to as the Snoopers' Charter, civil liberties groups and activists have long criticized the bill, with some arguing that the law will let the U.K. government document everything we do online. Hardly surprising, as that is exactly the extent of the powers; your right to online privacy seems to have gone out the window with the bathwater.

The law will force internet providers — think in the broadest possible definition here — to record every internet customer’s web history in real time for up to a year, which can then be accessed by numerous government departments. Moreover, the new powers will force companies to decrypt data "on demand"; although what is unclear for now is how the government will oblige foreign companies to comply with such a demand. I would imagine that noncompliance will result in some sort of legal action or sanction. The powers will also seek to compel companies to disclose any new security features on products or services prior to launch in order to allow for consideration of whether it is necessary and proportionate to require of companies to be technically transparent on new features.

All of this with an aim to prevent hindrance to police or intelligence agencies from intercepting or accessing communications and stored data.

This new law will give the British government the power to spy on its citizens to an extent that’s virtually unprecedented anywhere in the world — only Russia and China have comparable programs. Let’s be realistic, other countries are likely to follow suit; the impact of this development in the U.K. — a country that has been a beacon of democracy across the world — will have ramifications and ripples elsewhere. My thoughts turn to the U.S., where Donald Trump, the president-elect, has on numerous occasions following the San Bernardino attacks and in particular regarding Apple’s refusal to unlock a suspect’s iPhone, stated "security above all."

Interestingly, the parliamentary committee tasked with scrutinizing the bill had reservations, citing some of its provisions as "vague." The bill was opposed by representatives of the United Nations, major U.K. and global leading privacy and rights groups, and understandably so, by a string of digital and tech companies out in Silicon Valley. Not to mention public opinion, which sways largely toward online privacy being a fundamental right.

Intrusive and alarming all at the same time, some will hold that the U.K. is effectively legalizing activities that the spy agencies have been illegally carrying out for years, including bulk collection of personal communications and profile data. Admittedly it is somewhat disturbing to think that security and police services will have the power to hack and bug electronic devices from smartphones to baby monitors, but weren’t they doing this covertly in any case? The government is downplaying much of the controversy, maintaining its stance that the bill isn’t drastically new, but rather a rework of the old and outdated Regulation of Investigatory Powers Act.

Presently, how this new snooper system will work in practice is anyone’s guess; the government seems to be still very much in scope and design mode. There are some safeguards of note, however, such as the double-approval system, whereby the secretary of state and an independent judicial commissioner must agree to carry out search warrants. A new investigatory powers commissioner is also planned to oversee the use of powers. Nevertheless, the key take-away remains that citizen privacy — and that of U.K. foreign residents — will be more precarious than ever before. As always, the sound advice is: Be careful and mind how you express your digital existence.


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