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Civil Liberties

Investigatory Powers Bill

The snoopers charter, known as the Investigatory Powers Bill , is with us again. While tightening up privacy safeguards in proposed new spying laws, the government is seeking to give the police more power to see internet browsing records.

Published on Tuesday, the Bill will force service providers to store browsing records for 12 months. It will also give legal backing to bulk collection of internet traffic. It expands the purposes for which police can obtain internet connection records. It says they can be acquired for a “specific investigation” provided it is “necessary and proportionate.” Ministers say the new powers are needed to fight terrorism, but internet firms have questioned their practicality, and civil liberties campaigners say it clears the way for mass surveillance,

In her written statement to Parliament, Theresa May said that the government is not seeking sweeping new powers and had taken on board the criticisms of three parliamentary committees. She said: “The privacy safeguards are stronger and clearer. The Bill incorporates additional protections for journalists, removing a key exemption for the security and intelligence agencies when seeking to identify journalists’ sources. And it incorporates statutory protections for lawyers.”

May said the latest version reflected the majority of the 122 recommendations made by MPs and peers, including strengthening safeguards, enhancing privacy protections and bolstering oversight arrangements.

She also said that the revised measure would strengthen the office and powers of the investigatory powers commissioner, giving the lord chief justice a role in his or her appointment. “This is vital legislation and we are determined to get it right…Terrorists and criminals are operating online and we need to ensure the police and security services can keep pace with the modern world and continue to protect the British public from the many serious threats we face.”

May said the Bill is not asking companies to weaken their security by undermining encryption. New safeguards for interception and equipment interference warrants are introduced, reducing the period of time within which urgent warrants must be reviewed by a Judicial Commissioner from five to three days.

She said: “The Bill as amended strengthens the office and powers of the new Investigatory Powers Commissioner, giving the Lord Chief Justice a role in his or her appointment and allowing for the Commissioner to inform people who have suffered as a result of the inappropriate use of powers.

“The ‘double-lock’ authorisation model endorsed by the Joint Committee – involving judges in the approval of warrants for the most intrusive powers – remains on the face of the Bill and has been strengthened further in respect of urgent warrants.”

Ministers want the new bill to become law by the end of the year, citing the urgent demands of national security and crime prevention.

The ‘Guardian’ reports that Shami Chakrabarti, director of Liberty, said: “Less than three weeks ago MPs advised 123 changes to the majorly flawed draft bill. The powers were too broad, safeguards too few and crucial investigatory powers entirely missing. Government must return to the drawing board and give this vital, complex task appropriate time.” Lord Strasburger, a Liberal Democrat member of the scrutiny committee on the draft bill, said nothing had changed. “The Home Office just doesn’t do privacy. It does security and ever more intrusive powers they claim will make us safer, but not privacy.”

The ‘Guardian’ editorial says the bill “is, in its way, a triumph for [Edward] Snowden: it involves the British security state coming clean about the extraordinary existing facility to snoop that he exposed, spelling the powers out in statute for the first time… It will become possible to build up exhaustive logbooks on the lives of others. Bluntly described powers to switch on cameras and microphones on people’s own phones starkly reveal how the tide of technology is washing away all need for the old art of installing bugs…”

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Regulating cybersecurity

Recently the FBI called Apple’s headquarters in Cupertino, California. The agency wanted Apple to help them hack an iPhone. Apple refused.

The request stepped up a level when a federal magistrate ordered Apple to help the FBI unlock a single iPhone. The phone belonged to Syed Rizwan Farook, one of the killers in the December mass shooting in San Bernardino, California. Investigators have maintained that terrorists are hiding behind the safety of encryption to plan attacks, putting lives at risk.

Apple again refused. Read the full story

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Counter-terrorism laws breach fundamental rights

The appeals court has ruled that the United Kingdom’s broad counter-terrorism laws breach fundamental rights in a case involving the seizure of encrypted documents. The decision came in the case of David Miranda, who was detained at Heathrow airport in 2013 for carrying files related to information obtained by the US whistleblower Edward Snowden. Read the full story

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Investigatory Powers Bill

Britain leads the world in the use of CCTV, and surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy.

Coalition home secretary Teresa May’s snooper’s charter bill, introduced three years ago, would have allowed GCHQ to conduct real-time surveillance of a person’s communications and their web usage. The intelligence services and police would have had powers to insist that internet and phone companies hand over our data without our knowledge. Read the full story

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Safe harbour framework ruled invalid

EU advises users to shut their Facebook accounts if they don’t want US security prying

On 6 October the legal regime which allows US businesses such as Facebook to hold personal data about Europeans was overturned by a court decision that, although not totally unexpected, still came as a bombshell to the internet industry.

In Maximilian Schrems v Data Protection Commissioner, the Court of Justice of the EU ruled invalid the so-called ‘safe harbour’ framework agreed in 2000 by the EU and US. Safe harbour allowed multinationals to hold data in the US despite laxer rules covering the protection of personal data. It also allowed companies such as Facebook to self-certify that they would protect EU citizens’ data when transferred and stored within US data centres.

In another case, the European Court of Justice has ruled in favour of the Hungarian data protection authority in its case against Slovakian property site Weltimmo. It’s a landmark ruling that could have big implications for companies such as Facebook and Google, operating across multiple EU countries. The ECJ ruled that if a company operates a service in the native language of a country, and has representatives in that country, then it can be held accountable by the country’s national data protection agency despite not being headquartered in the country.

Now that the 2000 agreement has been ruled invalid, American companies, including Google, Facebook, Apple and Microsoft, can no longer rely on self-certification and must seek to strike “model contract clauses” in each case. These agreements authorise the transfer of data outside of Europe.
Despite an amnesty period for these giant companies, the tech industry is worried. Because of the provisions of the EU decision, the companies may have to change their operating models in Europe and spend large sums of money reconfiguring the way they store user data. Under the terms of the amnesty, the US and EU have three months to hammer out a successor to the Safe Harbor policy.

A new safe harbour agreement is currently being negotiated between the EU and the US, and has been in negotiation for the last two years, following the Snowden revelations. The EU has been trying to limit the US government’s access to EU citizens’ data stored in the US and to allow EU citizens to sue US companies in US courts should they misuse their data.

The European Commission has warned EU citizens that they should close their Facebook accounts if they want to keep information private from US security services. In the meantime encryption may hold the answer to maintaining data transfer while a new agreement is put in place.

The companies most affected are likely to be smaller, less financially and technologically able companies. Many use US-based cloud services to store or process data that they could not do themselves. These companies will have to abide by the same systems as Facebook and Google, agreeing model contract clauses and ensuring that the service they are using, such as Amazon’s web services, also complies with data protection regulations. Despite being standard and essentially fixed agreements, getting them approved before transferring data will be both a financial and administrative burden.

Brad Smith, Microsoft’s president and chief legal officer, noted in a lengthy blog post that the court “struck down an international legal regime that over 4,000 companies have been relying upon not just to move data across the Atlantic, but to do business and serve consumers on two continents with over 800 million people.”

“In recent years it has been apparent that a new century requires a new privacy framework. It’s time to go build it,” Smith wrote.

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Proposals on a Bill of Rights this autumn

At a ceremony celebrating the 800th anniversary of the signing of Magna Carta David Cameron said that the Conservative commitment to break the link between the British courts and the European court of human rights (ECHR) by scrapping the Human Rights Act and replacing it with a British bill of rights will safeguard the Charter’s legacy.

In the Commons on Tuesday the Parliamentary Under-Secretary of State for Justice (Dominic Raab) was asked when he plans to open a consultation on proposals for a British Bill of Rights. Read the full story

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Law students overturn 95% of ‘fit for work’ judgements

A group of Bristol law students have won £1million back for claimants wrongly declared ‘fit for work’ by the Department for Work and Pensions.

The work capability assessment (WCA) has proved hugely controversial since its introduction under the last Labour government. It was expanded rapidly under the Coalition where the tests, then run by Atos, became notorious for causing stress and harm for many who undergo it. It has been dogged by huge administrative delays and appeal backlogs.
Read the full story

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Court of Appeal allows charities to challenge legal aid cuts for prisoners

Denying prisoners in England and Wales legal aid so they can effectively challenge the conditions under which they are held could be illegal, the court of appeal has ruled.

Senior judges have granted two charities – the Howard League for Penal Reform and the Prisoners’ Advice Service (PAS) – permission to bring a fresh case questioning the legality of budgetary restrictions introduced by the Ministry of Justice. Read the full story

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FGM ‘cutters’ to be banned from Britain

Courts will be able to stop suspected overseas “cutters” from coming to Britain under a law * that came into force last Friday to protect girls from female genital mutilation.

The legislation, which permits “FGM protection orders” to be issued for the first time, will also allow passports to be seized from people who want to take girls abroad for mutilation. Orders barring family members from conspiring or encouraging others to commit mutilation will also be available to the courts under the new powers.
The new FGM protection orders are modelled on the existing forced marriage protection orders. Read the full story

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Ban on sending books to prisoners ended

One of the more mean spirited decisions of former lord chancellor Chris Grayling was his ban on books for prisoners in jail. Not that he ever accepted it was a ban on books.

He said at the time that there had been no policy changes “specifically about the availability of books in prisons”, and that “there have always been pretty tight rules about the receipt of parcels in prisons.” because “our prison staff fight a constant battle to prevent illicit items, such as drugs, extremist materials, mobile phones, SIM cards and pornography getting into our prisons.” Read the full story

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