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16 March 2016updated 01 Jul 2021 1:28pm

Labour can do better than Andy Burnham’s half-hearted opposition to the Snoopers’ Charter

The Investigatory Powers Bill seeks to legitimise powers already used by police and security services. Labour's refusal to fully question its aims is a mistake.

By Barbara Speed

“Do you agree with the principle of the bill?”

A Conservative MP asked this of Shadow Home Secretary Andy Burnham yesterday, when he explained that Labour would be abstaining from voting for or against the second reading of the Investigatory Powers Bill in order to avoid both blocking it entirely, or handing the government a “blank cheque” to surveil the British public. 

It’s a good question, which Burnham didn’t really answer. The bill is vastly complex and jargon-heavy (MPs had just two weeks since its first reading to read the combined 1,200 pages of the draft and its supporting documents) but it is also highly ideological in the assumptions it makes about the role of government and law enforcement in civilian life.

Yet the debate focussed on particulars over principles, especially in regard to how the bill would mesh with laws abroad and in Europe. It was only briefly acknowledged that the bill would “fundamentally change the relationship between the citizen and the state”. The same Member then went on to note that it seeks to solidify a change that has (broadly) already taken place. 

I can see how tempting it is to avoid the ideological arguments around surveillance: it’s easy to end up sounding like a conspiracy theorist. In the House, those who have nicknamed the bill, like its precursor, the “Snooper’s Charter” were labelled as exactly that. In his response to Theresa May’s introduction of the bill, Burnham slammed the idea that our security services are populated by “people who choose the job they do because they are busybodies”.

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Yet Burnham’s refusal to even engage with the idea was disappointing given that his party, under Jeremy Corbyn, has promised a fresh engagement with ideals over “me-tooism“. Burnham was pragmatic in his response, agreeing with May that the bill will tackle terrorism, child abuse, and baddies. Both shirked from the idea that it might be redefining our civil liberties, too, despite repeated assertions from civil liberties and human rights organisations like Liberty that it would do just that.

The security services are undeniably, under the stewardship of May, demanding both new powers and a legitimisation of powers an average person might be shocked to learn they are already using. (As Nick Clegg pointedly put it, it names powers that were “previously unavowed”.) For instance, the bill allows for “remote computer surveillance” when someone’s life is at risk. This could include hacking phones, accessing computers remotely, or, most frighteningly, hacking into webcams or microphones to effectively bug your home without entering it.

These powers were not present in the bill’s previous draft. Yet in a clarification issued by the Home Office, it was made clear that they were missed out by mistake first time round, since they were in fact already “current police practice”. (The fact that May believes “already doing it” is proof that something is the correct thing to do in a democratic state is a subject for another day.)

May writes in the bill’s introduction that the international nature of communications technology “[allows] those who would do us harm the opportunity to evade detection.” Yet what she fails to mention, and the unspoken heart of this entire debate, is the fact that technology is creating more access to criminals and ordinary people alike, not reducing it. As Burnham pointed out yesterday, May’s repeated insistence that internet connection records are “the same as an itemised phone bill” is rubbish. We now communicate constantly in the digital written word, which is saved on servers around the world for unknown lengths of time. The average iPhone collects and stores your location constantly. If government or security services do contain the odd busybody, they’re secretly punching the air with every new development. Google Glass is on their Christmas lists.

These developments mean security services can now potentially access tools which allow for total surveillance – they can be more effective than ever. Yet once this goes beyond a certain point, the meaning of “effective” becomes unclear. Statistically, you may be able to predict crimes based on search histories, and pre-emptively arrest pre-criminals. Should we do it, if it could save lives?

Much of the powers requested in the bill are pre-emptive, as opposed to reactive. As Clegg pointed out, the requirement for Internet service providers to collect our “internet connection reords” is the rough equivalent of asking the postal service to keep copies of all our letters. This kind of measure is required by no other governments besides Russia. 

The freedoms of criminals and the powers of law enforcement must always be balanced on behalf of the rest of us. In the past, this balance has come simply because surveillance was more limited by circumstance, but now surveillance is potentially infinite, we must be far more cautious about where the boundaries lie. The draft bill contains many phrases like “where necessary and proportionate”, but as everyone from Burnham to the Intelligence and Security Committee have pointed out, this kind of vague language demands we give the government benefit of the doubt in an area where our trust has been repeatedly violated. Demands for a new section to the bill on privacy to be added to an earlier draft were met by a single section heading change, which speaks volumes for the emphasis placed on the public’s rights. 

The examples of governments overstepping the line in terms of surveillance have become rather worn-out, but what they share is not that they were aberrations but that they were logical continuations of existing policy. What these exceptions prove is their own rule: that governments will always err towards control and monitoring, because, busybodies aside, it is trying to prevent crime and do its job. It’s only afterwards that the gross injustices become clear. When “bad guys” dissolve into “good guys in the wrong place at the wrong time”, or “the families of Hillsborough victims”, our passive acceptance of surveillance transforms into revulsion. “Bad guys” is a much more soluble concept than we might like to think.

In a world where technology could be near-total, pressure groups and opposition in government must provide the balance on the side of civil liberties that circumstance used to take care of.

“Children” and “child abuse” were referenced countless times in the debate, because in those cases, the “right” course is clear. We would go to almost any lengths to protect our children. But when it comes to the rest of us, who decides when our rights to privacy are to be swept aside? Do we trust Home Secretaries and judges to make the right, snap decisions? May hopes that this new legislation will “last the test of time”, so what happens when technology becomes even more embedded in our lives and even bodies? What bounty will be placed on our thoughts? What government will place that bounty? What ideals will guide it? 

It’s possible that these issues will be thrashed out more thoroughly as the bill passes through the next stages – as it doubtless will, given Labour’s reluctance to oppose it (while the SNP abstained and Liberal Democrats opposed). But Burnham’s attempt to ignore the principles quietly lurking behind the bill’s words is only a short-term fix. In time, Labour’s abstension will be seen for the quiet, passive acquiesence it is. And by then, it will be too late. 

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