13 June 2000
Open Letter by Amnesty International to members of the House of Lords on
The Regulation of Investigatory Powers Bill
Amnesty
International’s monitoring of the human rights situation in the United
Kingdom has revealed that existing practices involving surveillance and
undercover operations have resulted in human rights violations by law
enforcement officials. The organization is concerned that this draft
legislation, the Regulation of Investigatory Powers (RIP) Bill, while
expanding the scope of permissive surveillance, fails to provide sufficient
safeguards to ensure accountability and protection of human rights.
The
RIP Bill, which is currently before the House of Lords, if passed, could lead
to violations of fundamental human rights, enshrined in the European
Convention and other human rights treaties to which the UK is a party. Amnesty
International agrees with other NGOs -- including Liberty, Justice and
Foundation for Information Policy Research -- in many of their detailed
criticisms and suggested amendments to the draft legislation. Amnesty
International believes that the provisions, if applied, will violate
individuals’ rights to privacy and fair trial and may have a chilling effect
on the non-violent exercise of fundamental rights of freedom of expression and
association.
Furthermore,
Amnesty International is writing to you in order to express concern
that provisions in the draft legislation, if applied, could undermine the
effectiveness of organizations such as Amnesty International in defending
human rights and victims of human rights violations throughout the world. Some
provisions would impact Amnesty International’s ability to communicate
confidentially with victims of human rights violations (both in their
countries and in the UK in relation to the refugee determination process);
they would also impact the confidentiality of communications between the
International Secretariat of Amnesty International in London and its sections
and affiliated groups throughout the world.
The
RIP Bill legalises a variety of intrusive surveillance techniques: the bugging
of homes, cars, etc; the covert use of informants and undercover officers;
powers for a wide variety of agencies and government departments to undertake
covert surveillance; and the interception of communications. The Bill is
fundamentally flawed, because it does not contain sufficient safeguards
against misuse, and does not take human rights or civil liberties sufficiently
into account. The Bill has four
main parts. The first deals with the interception of communications;
the second covers surveillance and covert human intelligence sources;
and the third deals with encryption. The fourth part outlines a regulatory
mechanism for scrutiny of investigatory powers and of the functions of the
intelligence services.
According
to the Bill, the interception of communications is restricted to
investigations in the interests of national security, for safeguarding the
economic well-being of the UK, or for preventing or detecting serious crime.
Amnesty International is concerned that the Bill does not provide a definition
of national security and that therefore it can be open to abuse. In addition,
the definition of serious crime includes “conduct by a large number of
persons in pursuit of a common purpose”, which means that surveillance could
be extended indiscriminately to participants in legitimate collective
activity. Amnesty International is concerned that these provisions could lead
to the targeting of people for exercising their rights to freedom of
association and expression.
PART
I
Part
I, which is entitled “Interception of Communications”, gives the Home
Secretary -- rather than a court -- the power to authorise a warrant requiring
the interception of any form of communication, including e-mails, faxes and
pagers, and which could also include interceptions of private
telecommunications systems. It also deals with communications data. The Bill
also provides for interception -- without judicial supervision and without
warrant -- in relation to covert
investigations, prisons and secure hospitals, among others.
Amnesty
International considers that the power of authorisation should not be in the
hands of the executive, but rather that such power should be in the hands of
the judiciary: “it is argued that a member of the executive lacks the
necessary independence to authorise interception by a state agency ... a
senior judge would be a more appropriate arbiter of the balance between the
rights of the individual and the interests of the state”. (Justice, Second
Reading Briefing) The European
Court of Human Rights, as in the case of Klass v Germany, has stressed
the importance of judicial oversight as a safeguard for surveillance
operations.
Under
this legislation, Internet Service Providers (ISPs) will have to build
“interception capabilities” into their systems, so that when served with a
warrant they will be forced to intercept private e-mail messages and convey
the contents to police or intelligence officers; refusal to comply with this
warrant could lead to a term of imprisonment of up to two years. The person at
the ISP, in whose name the warrant is issued to place an intercept, is liable
to five years’ imprisonment for “tipping off” the client or any third
party about the intercept.
Internet
service providers and other telecommunications providers could also be
required to disclose “communications data” (which means data indicating
all addresses of a person’s Internet communication). Designated officials in
any public authority may also authorise themselves to obtain such data
directly. Once the RIP Bill becomes law, ISPs will be required to
install a black box -- which would be linked to a central monitoring facility
currently being installed in MI5's headquarters -- and which would allow the
security services to monitor all Internet traffic. This new mass surveillance
facility is called the Government Technical Assistance Centre (GTAC). This
would enable MI5 to identify the
pattern of individuals’ Internet connections by monitoring logs of the
websites accessed, which would provide knowledge of the pages downloaded, the
addresses of email contacts, the discussion groups accessed, etc.
Under
law currently in force in the UK, evidence obtained through interception of
communications is prohibited from being used in criminal proceedings. The RIP
Bill, however, if enacted, will allow for the disclosure of this material by
the prosecution but only to the trial judge. There is no provision for the
disclosure of this evidence to the defence. This provision undermines an
individual’s right to a fair trial under Article 6 of the European
Convention because it undermines the right to present a defence and the
principle of the equality of arms. This material should be the subject of
ordinary disclosure rules in criminal proceedings.
Another
of the provisions of great concern is the exchange, with foreign
governments’ agencies, of the fruits of interception. Information passed on
by British police authorities could be used by governments to target people
engaged in the peaceful exercise of fundamental internationally recognized
human rights of freedom of speech and association, including human rights
defenders. This bill allows for interception from the UK of
“communications of subjects on the territory of another country
according to the law of that country” at the request of the
“competent authority” in that country. No limits are placed on the
use of such intercepted material. It also covers intercepting communications
(post and telecommunications) at the request of a non-UK state or agency under
an international mutual assistance agreement. Amnesty International is
concerned that these provisions could potentially violate the rights to life
and to liberty of people for exercising their human rights, including human
rights defenders and prisoners of conscience.
Part
II
Part
II provides the framework for authorising three forms of covert surveillance:
directed surveillance, intrusive surveillance, and the use and conduct of
covert human intelligence sources (informers, agents and undercover officers).
Justice has raised concerns that some of the powers in direct and intrusive
surveillance, because of how they are defined and controlled, may be in
contravention of Article 8 of the European Convention. These powers, once
again, are not subject to any form of judicial authorization. The mechanism of
a Covert Investigations Commissioner would appear to be nominal unless it were
to be specified, within the legislation, that each agency, which has
authorised surveillance, is required to report their activities to the
Commissioner. No one can have effective oversight of activities of which they
are unaware.
This
part of the bill also places the use and conduct of informers and undercover
officers under statutory control. However, Amnesty International is concerned
that the safeguards to control and scrutinize the legality and necessity of
the use of covert human intelligence sources are inadequate. Amnesty
International has for years been concerned about the operations of
undercover law enforcement officers in Northern Ireland because of
evidence that such operations were not subject to any form of scrutiny and
that officers who broke the law have not been brought to justice, including
officers who may have colluded in murder. Therefore Amnesty International is
concerned that the proposals in the bill for internal, executive authorisation
(self-authorisation) do not provide an adequate safeguard to ensure that such
activities are lawful and are being regularly monitored. Indeed the
self-authorisation and the lack of judicial supervision perpetuates the
existing lack of effective control and scrutiny.
Part
III
Part
III of the Bill gives the authorities unprecedented powers to compel the
disclosure of keys to enable intelligence and law enforcement officials to
read communications, which have been “encrypted” (i.e. coded) in order to
maintain confidentiality. The interception of such confidential communications
may be a serious invasion of privacy, under Article 8 of the European
Convention, as well as a potential risk to the security of people who have
been victims of human rights violations or who may be vulnerable because of
their activities as human rights defenders. It may also deter people from
transmitting information about human rights violations, including
authorities’ involvement in abuse. These provisions risk undermining the
work of Amnesty International and other non-government organizations in
working for the protection of human rights.
Under
this provision, an individual within the service provider will be served with
a written notice compelling that person to disclose the “encryption key”.
The notices can be served on “anyone there are reasonable grounds for
believing” that they have the encryption key. If the person on whom the
notice has been served refuses or is unable to reveal the key, that person
faces two years’ imprisonment. The onus is on the person, who was served
with the notice, to prove that they do not have the key - this provision
shifts the burden of proof from the prosecution to the defence by basing the
proof of a criminal case on a fundamental element of the offence. Amnesty
International considers that this violates the rights to a fair trial and the
presumption of innocence. In addition, people face five years’ imprisonment
for revealing that they have been required to supply an encryption key, even
if their actions are based on conscientiously-held beliefs.
Part
IV
This
section deals with oversight and the complaints mechanism. The additional
areas of covert surveillance will be added to the tasks of oversight of the
four existing Commissioners (the Interception of Communications Commissioner,
the Security and Intelligence Committee, the Surveillance Commissioner and the
Covert Investigations Commissioner). However, the powers of the oversight
Commissioners are not adequate to make them a real safeguard against abuse of
power. For example, the Interception of Communications Commissioner cannot
effectively oversee the working of the provisions concerning communications
data if the Commissioner does not have to be notified of each authorisation.
It is also difficult to see how the Interception of Communications
Commissioner could supervise the operation of the “black-boxes”.
The
bill provides for a single Tribunal to hear all complaints in relation to
surveillance conduct, including that of the intelligence services. A
complaints mechanism cannot be effective, if a person is unaware that their
communications have been intercepted or that they have been under any form of
surveillance. According to Justice, legislation in other countries provides
for some form of notification after the event, subject to police
investigations not being prejudiced. Consideration should be given to
providing some form of such notification. In addition, for the Tribunal to be
effective, its functioning and procedures must be transparent and in
accordance with Article 6 of the European Convention, which means that the
complainant must have a hearing, must have access to relevant information and
must be given reasons as to why their complaint has or has not been upheld. A
Tribunal which does not have the above attributes does not inspire any
confidence that it will ensure that the agencies, engaged in surveillance or
interception, will be held accountable
for their conduct.
In
conclusion, Amnesty International is concerned at the implications of this
legislation for the protection of human rights. The organization urges you to
amend the legislation in order to ensure that it will incorporate effective
safeguards, including judicial supervision of or authorisation of interception
and surveillance operations, in order to protect people’s fundamental rights
to life, liberty, fair trial, freedom
of expression, freedom of association, and privacy.