To: Axel Davies (Axel.Davies@homeoffice.gsi.gov.uk)

17th November 2000

Regulation of Investigatory Powers Act - Consultation on codes of practice: Interception 

The Foundation for Information Policy Research has decided not to provide a detailed response to the public consultation on the RIP Act Code of Practice on Interception for the following reasons:

1. carefully prepared responses to previous consultation exercises (e.g. http://www.homeoffice.gov.uk/oicd/fipr.pdf of August 1999) appear to have had no influence or effect whatsoever. The arguments we put forward were vindicated by the considerable concessions the government were eventually obliged to offer in the House of Lords on such matters as :
   1. wholly inadequate definitions of communications data 
   2. requiring warrants for surveillance of web-browsing 
   3. accepting that the Commissioner needs reliable and verifiable technical means to monitor the functioning of Internet interception apparatus 
   4. unquantifiable costs of Internet interception capabilities
2. previous official summaries of consultation responses have not fairly reflected either salient criticism or the preponderant balance of opinion on key issues, and we have no confidence that this is likely to change.
3. whilst NGOs continue to be excluded from consultative bodies (such as the Technical Advisory Board, and the Encryption Co-ordination Unit "Government/Industry" forum), we see little purpose in lending credence to the fiction that meaningful public consultation is taking place with civil society.
4. although the Draft Code of Practice has manifest deficiencies in such areas as :
   1. retention of intercepted material to secure the fairness of prosecutions 
   2. logging the exact details of material intercepted, factors and schedules employed, to assess the justification and efficacy of interception policy and for technical audit 
   3. establishing a presumption that warrants should be served on ISPs, unless there are reasons not to 
   4. lack of explicit criteria governing protections to be afforded to medical, religious, and journalistic matters 
   5. lack of explicit criteria governing how proportionality should be assessed 
   6. prohibiting collusion between law enforcement agencies and CSPs using RIP 3(3) to circumvent need for properly authorised warrants
   7. guidance on the meaning of "necessary" in RIP 5.6(a) in the context of Internet communications 
   8. guidance on adequacy of arrangements to satisfy RIP 16(1), "that [8.4] intercepted material is read, looked at or listened to" only in so far as it been certified as necessary

   we do not have confidence that even very full responses addressing these lacunae would appreciably alter the final Code.

We are pleased that the Home Office has now adopted the practice which FIPR initiated of web-publishing responses to consultation in full, and we trust that this will continue. We request that this note is published together with other responses, and we reserve our position on responding to future consultations. 

--
Caspar Bowden Tel: +44(0)20 7354 2333
Director, Foundation for Information Policy Research
RIP Information Centre at: www.fipr.org/rip#media