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RIPA Reform

April 16, 2009

I’ve been looking over the government’s proposals for consultation on the reform on the Regulation of Investigatory Powers Act 2000 (RIPA), officially published on Friday. There’s actually very little that they suggest, apart from some minor and largely voluntary controls on the use of RIPA for trivial purposes by Local Authorities. The Times rang me up and asked me to knock off 500 words (in about an hour!) for a comment on the proposals… which I did… and here it is, unedited*:

Reforming RIPA

Back in the year 2000, opposition was developing to a new piece of legislation, the Regulation of Investigatory Powers Bill. But the controversy over the Bill which became the Regulation of Investigatory Powers Act 2000 (RIPA) was all about provisions to bring electronic communications (e-mail) under the same regulatory regime as telephone and telex, and to demand encryption keys.

What was relatively uncontroversial then were the provision for the regulation of covert surveillance by Local Authorities. Now, councils are accused of abusing the RIPA for trivial purposes, such as dog fouling or littering, or using oppressive or intrusive methods that are not proportional or appropriate to the alleged offences, such as covert monitoring of children to establish where parents involved in an application for school places lived. And much seems to have been inefficient too: a survey of Britain’s 182 Local Authorities found that they have used RIPA surveillance on over 10,000 occasions, yet only 9% resulted in prosecution or enforcement action. But it is not just local government. The Surveillance Commissioner has criticized national ministries like DEFRA and agencies including Ofcom and the Charities Commission over their misuse of RIPA**.

Officials respond that RIPA merely restricts and records what organisations were already doing. Most of the surveillance, they argue, is of the level of two men in a car watching a known fly-tipping site, and that even this requires onerous form-filling – four pages for each request. And even the statistics mislead, because there simply were no statistics on surveillance by these organisations before RIPA.

If RIPA has enabled us to see both the levels and abuse of surveillance powers, it has done us this favour at least. But the Surveillance Commissioner found generalized lax practice, a lack of proper justifications and proportionality, and little training or accountability: RIPA is being used because the powers exist, not because there is any pressing justification to use surveillance in this manner.

RIPA was always expansionary in that it allowed more than was intended. It was also a rag-bag; even the original e-mail surveillance provisions were cut and pasted from another bill. Like so much of the legislation from this government, it was poorly drafted and justified in parliament at the time by reference to issues (like national security) which little relevance to what most of the Act was about. And its appeals body, the Investigatory Powers Tribunal, is practically invisible, as the House of Lords Constitution Committee report on surveillance argued recently.

The Constitution Committee went a lot further than the government in this consultation document, arguing that surveillance powers should be reserved for the investigation of serious criminal offences and that should judicial oversight for all surveillance carried out by public authorities. Instead here, the government merely suggests moving sign-off powers higher up within the organizations. The Lords also suggested that there should have been proper provision for public accountability and post-legislative scrutiny in RIPA. Instead, this review is taking place due largely to government embarrassment over the constant stream of revelations.

Yet the government seems intent on extending surveillance and other powers still further; there has been a proliferation of databases, agencies, laws, and quasi-police. The new Communications Bill will extend surveillance powers over the Internet still further. The consultation document also reminds us in one section that there is still no meaningful regulation of the now ubiquitous CCTV cameras: they are outside of RIPA and, it seems, out of control. RIPA is merely one aspect of a very British tendency to manage things through surveillance before other means – which is a good working definition of a ‘surveillance society’. This has to be controlled, and in a rather more thoughtful and systematic way than these knee-jerk reviews in response to media concern.

*The edited version has now been published by The Times as ‘A very British tendency…’ They have just trimmed the attempt to broaden the argument at the end!

**This is what you get for writing something very quickly – in the editing, I compressed stuff that had originally said that Ofcom and the Charities Commission were using RIPA and that various organisations had been criticised into one sentence that implied that they were the organisations being criticised. Neither have been so criticised by the Surveillance Commissioner and I apologise to both for suggesting that they were.

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