It has been reported that MI5, the UK’s counter-intelligence and security agency, has been collecting and analysing substantial data from the phone records of UK citizens over the past 10 years. Following this revelation, many may raise the question: how can this invasion of privacy be held as legal?
So what exactly has MI5 been collecting?
According to a BBC report (http://www.bbc.co.uk/news/uk-politics-34729139), the data that has been collected includes phone records that were handed over by phone companies for over a decade. Whilst this does not include the content of phone calls, it did include the records of the recipients and the length of calls made by UK citizens.
Why has this only been revealed now?
Theresa May noted that security services have been able to access data from phone companies for many years under the Telecommunications Act 1984. The Act required phone companies to hand over records on demand for the primary purpose of tracking terrorist communications. Therefore, whilst the 1984 Act predates the widespread use of mobile phones and Internet, this practice was not illegal. The Home Secretary suggests that it was the vagueness of the legislation and the minimal nature of this data collection that has allowed it to go unnoticed, even by members of MI5 themselves.
However, this revelation has surfaced in light of an even greater announcement in regards to the future privacy of our data. Theresa May made the above admission to MPs during the unveiling of the controversial new Investigatory Powers Bill, which will grant the police and security services extensive surveillance powers. This bill will require Internet Service Providers to store data records for 12 months, allow police and spies access to data without a judicial warrant, and will cost the public £245 million to implement.
Can increased surveillance of our personal data be justified?
A concern which may be raised in relation to Investigatory Powers Bill, and indeed, the data collection by public authorities to date, is an invasion of privacy – a basic human right of UK citizens under Article 8 of the Human Rights Act 1988, which protects, in particular, a ‘respect for correspondence’. Civil liberties campaigners have also raised the problems associated with the storage of large amounts of data, particularly by Internet providers, as highlighted by the recent cyber-attack on TalkTalk.
However, MI5, MI6 and the police will use this surveillance bill to target the online communications of terrorists, paedophiles and serious criminals. According to Theresa May, the bill will “provide some of the strongest protections and safeguards anywhere in the democratic world and an approach that sets new standards for openness, transparency and oversight.” Thus, the public authority has put a clear public policy justification forward.
In terms of safeguarding the privacy of citizens, the bill aims to introduce a ‘double lock’ system: judges will be required to approve more intrusive surveillance, and the accessing of journalist’ phone records to identify their sources will require prior approval by a judicial commissioner. Further, the Government has reassured that safeguards will ensure that records can only be accessed in relation to serious crimes.
In summary, if the Investigatory Powers Bill is passed and implemented under UK law, we will have to tolerate a greater level of state surveillance than that which has been exposed in the past few days. There is a public policy argument in assisting the state to tackle serious crime, and reassurance has been given by the Government that there will be transparency and safeguarding of our data in going forward. However, the concern remains of the dangers in allowing enhanced state surveillance of our data. With big data comes big power in the digital age. It is therefore questioned: how much surveillance is too much in relation to the protection of our privacy, particularly when such surveillance requires Internet providers, who have been increasingly vulnerable to cyber-attacks to keep a hold of our data for the purpose?
by Hannah Bergin
Current Legal Affairs writer