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Liberty is challenging the unprecedented bulk surveillance powers that allow the state to collect and monitor everyone’s web history and email, text and phone records, and hack computers, phones and tablets.
The IP Act forces communications companies and service providers to retain and hand over logs of everybody’s emails, phone calls, texts and entire web browsing history to state agencies for analysis and profiling purposes.
In December 2016, the European Court of Justice issued a historic judgement in a separate case brought by Tom Watson MP, represented by Liberty lawyers. The case was also brought by current Brexit secretary David Davis – although Davis withdrew his name from the action after his elevation to the Cabinet in July 2016.
The European Court of Justice ruled the same powers in the Data Retention and Investigatory Powers Act (Dripa) – the previous law governing UK state surveillance – were unlawful.
Liberty sent a formal letter on 20 December 2016, but in March this year said it had not received any response and had applied to the High Court for permission to proceed.
Now permission has been granted, Liberty’s application for a costs capping order will be considered. If granted, the case will be listed for a full hearing in due course.
Public supports protection of privacy rights
The challenge is being crowdfunded through CrowdJustice, and has received widespread public support. In January, Liberty raised more than £50,000 from the public in less than a week, exceeding its initial target of £10,000.
More than 200,000 people signed a petition calling for the repeal of the Investigatory Powers Act after it became law in late 2016.
Martha Spurrier, Liberty
The act passed through Parliament even though, according to Liberty, the government failed to provide evidence that surveillance of everybody in the UK was lawful or necessary, and despite warnings from whistleblowers and experts that the powers would make it more difficult for security services to do their jobs effectively.
Martha Spurrier, director of Liberty, welcomed the opportunity to challenge what she called an “authoritarian surveillance regime”, saying it had become clearer than ever in recent months that the IP Act was not fit for purpose.
“The government doesn’t need to spy on the entire population to fight terrorism. All that does is undermine the very rights, freedoms and democracy terrorists seek to destroy,” she said.
“And as increasingly frequent hacking attacks bring businesses and public bodies to their knees, our government’s obsession with storing vast amounts of sensitive information about every single one of us looks dangerously irresponsible.
“If they truly want to keep us safe and protect our cyber security, they urgently need to face up to reality and focus on closely monitoring those who pose a serious threat,” she said.
Further IP Act challenges to come
The High Court has also allowed Liberty to seek permission to challenge three other parts of the IP Act once the government publishes further codes of practice, or by March 2018 at the latest. These cover:
- Bulk and “thematic” hacking: the act lets police and agencies covertly access, control and alter electronic devices such as computers, phones and tablets on an industrial scale, regardless of whether their owners are suspected of involvement in crime – leaving them vulnerable to further attack by hackers.
- Bulk interception and acquisition of communications content: the act lets the state read texts, online instant messages and emails, and listen in on calls en masse, without requiring suspicion of criminal activity.
- Bulk personal datasets: the act lets agencies acquire and link vast databases held by the public or private sector. These contain details on religion, ethnic origin, sexuality, political leanings and health problems, potentially on the entire population – and are ripe for abuse and discrimination.
Liberty has instructed Shamik Dutta at Bhatt Murphy Solicitors, Ben Jaffey QC, Martin Chamberlain QC and David Heaton in this case.