Into The Unknown: Government Surveillance After Brexit

This piece originally appeared in Open Democracy here.

As the UK Parliament returns from its summer break, everyone’s back to talking about Brexit. But there’s another policy of existential significance to our democracy that we really need to be talking about. I refer here to the innocuously named ‘Investigatory Powers Bill’. The House of Lords have been debating the ‘bulk powers’ — what we would call the mass surveillance measures — of the Bill over the recent days. We are literally weeks away from the most draconian and far-reaching surveillance legislation of any democracy becoming law.

Given that it’s all about state surveillance powers, no wonder the government gave this legislation a name so boring that it has just slipped under the public’s radar undetected. 267 pages of highly complex, technical and very confusing clauses brings to mind Voltaire: “The secret of being a bore is to tell everything”. Not that they are telling us everything, of course. Despite the length of the legislation, it’s highly ambiguous: there are plenty of ‘known unknowns’ and ‘unknown unknowns’ about what state bodies’ newly-lawful surveillance practices will entail.

And while the Great British Brexit debate has been anything but boring, these two profoundly important political moves share some common features. No one really understands what they will mean for the UK, or knows how they will affect the UK’s relationship with the rest of the world. For example, a recent report we sent to every member of the House of Lords, raises a lot of questions about the impact of such legislation. Will British intelligence agency GCHQ programmes like Optic Nerve — which in just one six month period captured screengrabs of 1.8m Yahoo users’ webcam footage from all over the world, including a lot of sexually explicit material — now become lawfully sanctioned? Is the rest of the world on board with the UK doing that? And what does the international community make of GCHQ hacking a foreign country’s biggest telecommunications provider, as it did with Belgacom in Belgium? Even as a member of the EU, this was a diplomatically dangerous and of course ethically questionable activity. But outside of the protection of the EU, how will these kind of aggressive and far-reaching surveillance operations affect the UK’s relationships with other countries?

Will a post-Brexit UK, rebooting its economic, political, and diplomatic relationships with countries all over the world, be able to implement such far-reaching surveillance operations all over the world without there being potentially catastrophic political fallout? Add this to the long list of questions about the UK’s place in the world two years after Article 50 is triggered.

As the UK’s all-encompassing ambitions for government surveillance powers look to pass into law, there is also an important question now over whether in a post-Brexit Britain key judgments from the Court of Justice of the European Union (CJEU) will be able to curb those excesses. Perhaps they could have. People have often looked to international bodies to act as a bulwark on the worst excesses of laws such as those promised by the Investigatory Powers Bill. But the current political climate leaves us with no such guarantee.

The Schrems vs the Data Privacy Commissioner case, was a successful challenge of Facebook’s violation of EU privacy laws. The Digital Rights Ireland judgment, led to the European Data Retention Directive being declared invalid; and the further case that stemmed from this judgment, the Watson vs DRIPA case, is likely to rule in line with the Advocate General’s opinion: that bulk data retention, if it’s permissible at all, should only be allowed in the narrowest of circumstances for preventing serious crime. These all set precedents that could form the bases of legal challenges to the UK government’s surveillance legislation.

“And no one knows if these judgments will be worth the paper they’re written on in a post-Brexit UK.”

An astute europhile would respond that even a ‘Brexit means Brexit’ settlement won’t alter the fact that the UK will remain signatories to the European Convention of Human Rights (ECHR), and as such Britons’ privacy will still be protected under human rights law. But the twist in the story — and the twist of the knife — is that the UK Government is pushing forward with its plans to scrap the UK Human Rights Act, and attempt to fulfill our ECHR obligations with a new ‘Bill of Rights’. Make no mistake, the British government is not undertaking such a drastic, complex, and constitutionally fraught process to give Britons more human rights. So no one knows if these judgments will be worth the paper they’re written on in a post-Brexit UK.

The focus of the political commentariat will remain on Brexit, but it is not the only big legislative question right now that will redefine the UK’s relationship with the rest of the world. The Investigatory Powers Bill is about the relationship between the individual and the state in the UK, and the relationship between the UK and every country in the world, just when Brexit is making the UK’s relationships with each of them so precarious.

The Schrems vs the Data Privacy Commissioner case, was a successful challenge of Facebook’s violation of EU privacy laws. The Digital Rights Ireland judgment, led to the European Data Retention Directive being declared invalid; and the further case that stemmed from this judgment, the Watson vs DRIPA case, is likely to rule in line with the Advocate General’s opinion: that bulk data retention, if it’s permissible at all, should only be allowed in the narrowest of circumstances for preventing serious crime. These all set precedents that could form the bases of legal challenges to the UK government’s surveillance legislation. And no one knows if these judgments will be worth the paper they’re written on in a post-Brexit UK.

An astute europhile would respond that even a ‘Brexit means Brexit’ settlement won’t alter the fact that the UK will remain signatories to the European Convention of Human Rights (ECHR), and as such Britons’ privacy will still be protected under human rights law. But the twist in the story — and the twist of the knife — is that the UK Government is pushing forward with its plans to scrap the UK Human Rights Act, and attempt to fulfill our ECHR obligations with a new ‘Bill of Rights’. Make no mistake, the British government is not undertaking such a drastic, complex, and constitutionally fraught process to give Britons more human rights. So no one knows if these judgments will be worth the paper they’re written on in a post-Brexit UK.

The focus of the political commentariat will remain on Brexit, but it is not the only big legislative question right now that will redefine the UK’s relationship with the rest of the world. The Investigatory Powers Bill is about the relationship between the individual and the state in the UK, and the relationship between the UK and every country in the world, just when Brexit is making the UK’s relationships with each of them so precarious.