The UK’s New Surveillance Law: Security Necessity or Snoopers’ Charter?

January 8, 2017 | Levi Maxey
Photo: iStock.com/fisfra

On January 1st, the United Kingdom began the implementation of the Investigatory Powers Act, widely considered the most comprehensive—and intrusive—surveillance law in the Western world. The Act authorizes government access to bulk datasets such as travel logs, financial transactions, biometrics, the interception of digital communications data, the hacking of devices, and requires the retention of browsing history by Internet service providers.

Advocates argue the law gives UK intelligence agencies and law enforcement the tools necessary to address threats ranging from serious criminal activity to international terrorism and malicious cyber activity in the digital age, all while providing the necessary assurances of democratic oversight and privacy protections.

Critics, on the other hand, have dubbed the Act the "Snoopers’ Charter," asserting the law retroactively legalizes invasive mass surveillance that could have a chilling effect on freedom of expression under the veneer of democratic accountability—all while undermining some key tenets of cybersecurity.

The Act received overwhelming support from the UK parliament and was signed into law last November with little public commotion. But what is the motivation behind the law and what does it actually entail? Why has the Act received strong criticism from civil liberties groups and private industry alike?

Much of the Act essentially consolidates—with some remnants left in parallel—already active digital intelligence gathering authorities and clearly codifies them together, rather than relying on separate legislative provisions under which the intelligence agencies and law enforcement previously acted.

The provisions in the Act seek to give the UK intelligence activities, revealed by NSA contractor Edward Snowden in June 2013, solid legal footing for their continued practice. This is particularly the case for Tempora, a program run by the Government Communications Headquarters (GCHQ), the UK’s signals intelligence service. As part of Tempora, the GCHQ taps underwater fiber-optic cables to collect, in bulk, Internet and telephone metadata—the who, when, where, and how of communications data—as well as probe unencrypted content through deep packet inspection tools. The process is known as “upstream collection” and is also conducted by the National Security Agency (NSA) as authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Sir David Omand, the first UK Security and Intelligence Coordinator and former Director of the GCHQ, suggests the targets of government surveillance will be “those who pose serious harm to society,” including terrorists, cyber criminals, organized crime syndicates, and child abuse networks, in which the exploitation of bulk digital data—“especially patterns and associations of communications data—has become an indispensable tool for law enforcement and the intelligence agencies.”

Omand also argues “the Act adds significant new safeguards for privacy,” that ensure “the algorithms and selectors [the GCHQ] apply to their bulk access to data streams, such as bearers on international cables, [are] sufficiently discriminating that what the human analyst gets to see is only ‘necessary and proportionate’ to their authorized mission.”

Privacy advocates disagree. Gus Hosein, the Executive Director of Privacy International, argues the Act is “a draconian and expansive piece of surveillance legislation that no other liberal democracy has had the gall to attempt,” and after a series of criticisms over its potential for privacy intrusion, “the Home Office responded by merely adding one instance of the word ‘privacy’ to the bill,” which spans over 300 pages.

While many of the provisions under the Act were previously operating on legal (if dispersed and controversial) grounds, there are also new authorities granted. New safeguards protect journalists and their confidential sources by requiring a judicial commissioner’s approval before obtaining communication records—previously obtainable without independent oversight.

At the same time, other new authorities increase the government’s reach. The Act demands Internet service providers record and maintain the connection history of all their customer’s devices for 12 months, including a list of all domain names—not specific websites—a user visits, the messaging platforms used, and even connections to remote servers for automated updates. Moreover, all of this data would then be accessible to law enforcement without a court order or warrant. Not only is this an immensely expensive requirement for service providers, but critics point to the clear potential for a chilling effect on freedom of expression.

The government can also serve companies a “technical capability notice,” whereby companies could be required to remove electronic protections applied to any communications or data—such as encryption—to help address the phenomenon of criminals and terrorists “going dark.” The law also criminalizes “unauthorized disclosures” regarding information related to surveillance orders, effectively gagging companies and consumers from viable methods of recourse.

Tech giants like Facebook, Google, Microsoft, Twitter, and Yahoo have criticized this provision on grounds that it could weaken encryption technology, which could push customers to resort to third-party unverified encryption and undermine overall cybersecurity. The UK asserted in its most recent National Cyber Security Strategy a desire to cultivate domestic encryption technology “developed in the UK, by British Nations,” in what seems to be an attempt to facilitate a UK-specific backdoor for law enforcement into encrypted devices and communications.

But perhaps most disconcerting for the privacy conscious, the Act allows law enforcement and tax investigators to conduct equipment interference and computer network exploitation—meaning hack—targeted phones and computers with government approval, while intelligence agencies can conduct large-scale “foreign-focused” hacks of devices simply to identify “targets of interest.” Hosein points out just how intrusive hacking can be: “When deployed against an individual’s computer or telephone, it can achieve results more intrusive than the cumulative actions of targeting an individual by bugging his house, searching his premises and possessions, and intercepting his communications, reviewing all letters and diaries, and putting a tracking device on him.”

Internationally, the U.S. Department of Justice recently made changes to Rule 41 of the Federal Rules of Criminal Procedure, giving the FBI similar authorities to hack multiple devices under a single warrant, while China has gone even further in asserting its sovereignty over cyberspace with its newly authorized Cybersecurity Law.

But for all its criticisms, why has the UK’s Investigatory Powers Act—something Omand describes as “one of the most examined pieces of legislation in the modern age”—passed with such strong support in the UK’s parliament? Part of the reason is seemingly less about the actual provisions within the law, or the threats they seek to mitigate, but rather the public deliberation it took to reach an agreement. Omand suggests “the scale of the change for the intelligence agencies should not be underestimated,” as the “UK government had to admit doing—and place restrictions on—activities such as ‘equipment interference,’ or hacking into devices used by their targets, and data mining bulk personal databases.”

It seems that UK citizens are more willing to authorize sweeping surveillance powers when the deliberations over authorities are clear and transparent—effectively creating a democratic license to continue.

Levi Maxey is a cyber and technology producer at The Cipher Brief. Follow him on Twitter @lemax13.

Next Steps in U.S.-Cuba Relations
Strengthening U.S. Cyber Defenses
Russia Sanctions: The New Normal
Corruption in China: The Party’s Over
Change in the Kingdom: Three Big Shifts
Managing Information & Risk in the Digital Age
Endgame in Afghanistan
The Convergence of Crime and Terror
Strengthening the Public-Private Partnership
The Billion Dollar Spy: An Interview with Author David Hoffman
The New Battlefield
North Africa: Instability Increasing
The Kidnapping Capital of the World
Homegrown Terror in the Age of ISIS
The Refugee Crisis: Europe on the Brink
The Future of Mexican Oil
Cracks in the System
Embassy Security Three Years After Benghazi
Fourteen Years Later
Can Congress Solve the Cybersecurity Problem?
Arctic Game Changer?
Where They Stand on National Security
The First 100 Days
Worthy of Fleming: Anthony Horowitz's "Trigger Mortis"
At the Crossroads
Eye in the Sky
Rough Road Ahead for Rousseff
Leveling the Playing Field: Tech Access in China
The Dead Drop
Top of Mind for Chief Security Officers
Protecting Your Business
The Future of Oil
Chinese Expansion in Latin America
American Involvement in Syria
The Future of Geospatial Intelligence
The Umbrella Movement: One Year Later
Ebola: An End in Sight?
The Pakistan Problem
The Dead Drop
The Encryption Debate
Going Dark
The US-Mexico Relationship
The Rise of Mobile Technology in Africa
The Dead Drop
Construction Boom in the Gulf
Cybersecurity: The Human Factor
Beijing and the South China Sea
Will Peace Talks Succeed in Colombia?
Social Media and Terrorism
The Rise of Israel’s Tech Sector
Securing the Border
Red Sun Rising
The Dead Drop
Adopting the Iran Deal
Stability on the Peninsula
Crime in South Africa
Combatting Terrorist Financing
The Dead Drop
Recovering from a Cyber Attack
Stability in South Asia
Veterans Day
Israel’s Wave of Violence
The Dead Drop
Protecting Critical Infrastructure
ISIS on the March
The Paris Attacks
Rethinking U.S. Security Assistance
The War on Terror 2.0
Putting Mali in Context
Will Russia Ever Change?
Will Canada Pull Back?
Understanding Putin’s Popularity
Chinese Expansion in Africa
Terrorism Finance and Wildlife Poaching
Illicit Trafficking in Latin America
Climate Change and Security
Preventing Another San Bernardino
Supply Chain Security
Negotiating a New Safe Harbor Agreement
The Battle for Yemen
Foreign Tech Access in China
The Dead Drop
Offensive Cyber Operations
Travel Security in the Age of ISIS
Iran: A Rising Cyber Power?
The Future of Cybersecurity
The Arab Spring Five Years Later
Preparing Today’s Military for Tomorrow’s Wars
Cybersecurity for Small and Medium-Sized Enterprises
Maritime Security in the Gulf of Guinea
Improving Aviation Security
The Dead Drop
Terrorism in 2016
Cybersecurity in 2016
The World in 2016: Opportunities and Risks
China in 2016
Russia in 2016
Moscow’s Cyber Buildup
The China-India Relationship
Russian Influence in Latin America
The Future of Homegrown Terrorism
Stability in Sub-Saharan Africa
Protecting Your Digital Identity
Elections in Taiwan: A Turning Point?
The Caliphate of Crime
Biotechnology’s Dark Side
Rethinking U.S. Strategy Toward China
The Evolution of Weapons of Mass Destruction
A New Era in US-Iranian Relations?
Will Information Sharing Improve Cybersecurity?
Evaluating China's New Silk Road
Tech in Latin America: Opportunities and Challenges
The Destruction of Libyan Oil
Ransomware: Protecting Yourself from Cyber Extortion
The US and India: Strengthening Security Cooperation
Security and Stability in Afghanistan
Combatting the Al Shabaab Threat
Sports Security: Protecting Your Venue
Israel’s Arab Alliance: A Counter to ISIS and Iran?
The End of U.S. Space Supremacy
The Caucasus: Instability Increasing
Stabilizing Iraq
The Trans-Pacific Partnership: Deepening U.S. Commitment to Asia
Securing Industrial Control Systems
The Battle for Ukraine
Defeating Boko Haram
Jordan: The Indispensable Ally
China’s Military Modernization
The Cybersecurity Skills Shortage
Solving Mexico’s Violence Problem
The Northern Triangle: The Most Violent Region in the World
The Future of the Middle East
Terrorism in the World’s Largest Muslim Country
The Rise of Quantum Computing
Europe’s Terrorism Problem
Stability in the East China Sea
The Rise of Counter-Drone Technology
The ISIS WMD Threat
Healthcare and the Cyber Threat
Security in the Indo-Pacific: Australia’s New Role
Countering ISIS' Message
Containing the ISIS Cancer
Security, Privacy, and the Fight Over Encryption
Taking Aim at Smart Guns
Losing Patience with North Korea
The Difficult Road Ahead for Colombia
The Taliban Resurgence
ISIS: The New Face of Global Jihad?
Connecting with Latin America
Russia and China: Mutually Assured Detachment
The Scourge of Terrorism
The Security Challenge of Terror
European Unity in the Face of Crises
Developing Enhanced Cybersecurity Systems
Pakistan: Friend and Foe?
Egypt’s Economy on the Brink
Tehran’s Balancing Act
Russia Makes Moves in the Middle East
Kenya’s Battle with al-Shabaab
Missile Defense in the Korean Peninsula
Are America's Ports Secure?
The Human Factor Behind the Panama Papers Leak
Russian Military Modernization
APTs: The Boogeymen of Cybersecurity
Vietnam: Guns and Butter
Syria: Power-sharing, Partitioning, and the Fight Against ISIS
Turbulence in Turkey
The U.S. and the Philippines: Shoulder to Shoulder in the South China Sea
The Darker Side of the Internet of Things
Cybersecurity Challenges in Asia
Taliban on the Offensive
Quagmire in Yemen
Cocaine and Conflict in Colombia
The Cloud: Nebulous, but Nimble
Censorship in China
An Emerging Crime-Terror Nexus in Europe
IRGC: Iran's Power Player
Latin America: The New Frontier for Cyber Attacks
The Hydra and the Snake: The Death of Osama Bin Laden
Nuclear Deterrence and Assurance in East Asia
Vehicle Cybersecurity: Running in Place
What Drives ISIS
Tensions Simmer in the South China Sea
Managing the Mobile Phone Malware Threat
Leaving the Oil Spigot Open
Burundi: A Path Toward Civil War?
The Value of Special Operations Forces
ISIS in the Balkans
The Tech Must Flow
North Korea’s Party Congress: What was all the fuss about?
Argentina: A Smoother Ride
Libya: Obama’s “Worst Mistake”
Tsai Ing-Wen’s Balancing Act
The North Korea Workers’ Party Congress and Kim Jong-un’s Legitimacy
Flying the Unfriendly Skies: Airline Security
Nuclear Standoff in South Asia
How to Read Riyadh
Even in Defeat, Austria’s Far-right Emulates Populist Growth in Europe
More Effective, Less Secure: The Cyber-Threat to Medical Devices
A New Era in the U.S.-Japan Security Partnership
Passing the Torch to the Next Generation of Saudi Leaders
U.S. Military Aid to Egypt Continues Despite Democratic Struggle
How Secure are Radiological Materials?
Roadblocks on the Path to Normality in Iran
Caracas in Crisis
Algeria: Exporting Stability
The Push for Kurdish Independence
U.S. and China: Strategic Cooperation at Arm’s Length
City Life: Living Smarter, Not Harder
Homegrown Terror in Orlando
A Rough Patch in U.S.-Saudi Relations
Japan’s “Abenomics”
A Tale of Two Bears: The DNC Hack
The Origins of Brexit
The Chinese Communist Party Under Xi Jinping
The Arctic: Technology and Infrastructure on Earth and in Space
Jordan: Stability Amidst Chaos
Exporting Jihad: Bosnia and Kosovo
Changing World Order: The Effects of Brexit
Navigating Uncharted Waters
Iraq after ISIS: Divide it or Fix it?
Terrorism in Istanbul: Severe Implications
North Korea as a Cyber Threat
One If By Air, Two If By Sea: Unmanned Surface Vehicles
The FBI’s Intelligence Mission
Does NATO Need a New Ideology?
Philippines v. China: Laying Down the Law of the Sea
Is Turkey Returning to a Policy of “Zero Problems?”
Federal Cybersecurity One Year After the OPM Breach
NATO: Weathering the Storms
The Rise of the Fringe: A Threat to Democracy?
Hezbollah's Many Faces
Trans-Pacific Trade Deal Remains in Limbo
The Aftermath of the Nice Attack: Is ISIS’ “Prestige” on the Rise?
Crossing the Line: A Failed Coup in Turkey
France’s Vulnerabilities in a Changing Terror Landscape
The Problem with Proxies
Water Security in South Asia: Running Dry and Running Out of Options
The Clash over Social Media Data
Extremist Groups Target Diversity in Bangladesh
Kenya: Private Sector and Government Coordinate on National Security
The ISIS-Al Qaeda Rivalry
Will Syria’s Most Productive Citizens Ever Return Home?
Trust but Verify: The United States, China & Economic Espionage
The World is Watching: The American Election and China
The Status Quo Will Not Work in South Sudan
Kurdistan as a Geopolitical Playground
Rio Olympic Games: A Missed Opportunity
Spinning Silk: Asia and the GCC
China-Japan Relations: Trading Goods While Exchanging Words
Climate Change in Ethiopia: Managing the Risks
Mounting Security Challenges in Afghanistan
Is There a Future for the Muslim Brotherhood in Egypt?
Niger Delta Militants Compound Nigeria’s Security Crises
Thailand Under the Junta
Brazil: Getting its House Back in Order Post Olympics
Indicators of Political Instability
Finding Water in the Desert: Water Security in the Middle East
The Blurring Line Between Cyber and Physical Threats
The World is Watching: The American Election and Russia
NATO’s Ambiguity on the Red Line for Russia
Boko Haram: The Plague Affecting Nigeria and Beyond
Tunisia: From Revolution to Governance
Russia, China, and Cyber Espionage
Best Of: The F-35 Joint Strike Fighter: Game-Changer or Procurement Nightmare?
Climate Change Jeopardizes National Security
Algeria: A Bulwark Against ISIS
Venezuela's Military: Both a Stabilizing and Destabilizing Force
Will Theresa May's Britain Stay Committed to European Defense?
America and the Asian Infrastructure Investment Bank
What’s at Stake in the South China Sea?
Fifteen Years After 9/11: Much Accomplished, Much to be Done
The Post-9/11 U.S. Military
The Post-9/11 U.S. Intelligence Community
South Africa: ANC Losing Its Grip on Power
The World is Watching: The American Election and Saudi Arabia
Turkish Leverage Over the United States and European Union
Nuclear North Korea: A No-Win Scenario?
Insider Cyber Threats: A Pressing Problem Facing Business
Al Shabaab: A Persistent Threat
Unease, Uncertainty, and Strife: Global Inequality and Instability
Europe Bears a Big Burden in the World's Migration Crisis
Malicious Cyber-Actors in the Financial Services Industry
China's Ongoing Struggle to Clamp Down on Terrorism
Growing Instability in Africa’s Top Two Oil Producers
The World is Watching: The American Election and Iran
Dollars and Sense: Military Spending During an Economic Downturn
Forewarned is Forearmed: Confronting Adversaries in Cyberspace
Is Peace Possible in Colombia?
The Rise of Hypersonic Weapons
Nuclear No First Use: Ambiguity vs. Clarity
Al Qaeda Growing Stronger By the Minute
Cyber and the Law
The DRC: Strong Grip on Power, Weak Handle on Governance
Combatting Haqqani Network is Key to Afghan Strategy
War and Peace: Syria and the Question of American Intervention
The F35: A 21st Century Coalition Asset
Objective: Mosul
Where is Duterte Leading the Philippines?
Great Power Politics in Latin America
In the Strait of Hormuz, Little has Changed with Iran
Corralling the Cartel: OPEC and Oil Prices
Russian Hacking: The Difficult Path Between Inaction and Escalation
Philippines' Duterte Leaves U.S. Policymakers "Baffled"
The World is Watching: The American Election and Germany
Can Hamas Elections Shift the Status Quo?
What is the Future of U.S. Policy in Latin America?
Conflict and Common Goals: the Government and Silicon Valley
Kashmir in Crisis—Again
Al Qaeda in Syria: The Split That Wasn't
EU and U.S. Interests in Hungary in Jeopardy
The Price of Turkish Posturing in Iraq
Is it Possible to Hack the Vote?
Decision Day in the U.S.: Daunting Security Challenges Ahead
The State of Play in Syria
Modi: Modernizing India
Trump's Win Creates Uncertainty in Europe
The Powers and Pitfalls of Drone Warfare
Insurgent Use of Unmanned Aerial Systems: A Cat-and-Mouse Game
The African Migrant Crisis: The EU Takes Action
The U.S. Military: Ready or Not?
Sisi, the IMF, and Egypt's Crumbling Economy
Can Robots Fight Wars? The Future of Lethal Autonomous Weapons Systems
The Global Debate Over the Legality of Drones Continues
Agility and Innovation in the Third Offset Strategy
China's Economy: Great Power, Great Responsibility
Identity in Cyberspace: The Advent of Biometrics Authentication
Obama's Legacy on Russia and China: Making the Grade
Sweden, Finland & Norway Deepen Defense Ties with the West
Developing and Sticking With a Clear Strategy in Afghanistan
Italy’s Choice: Damned If You Do, Damned If You Don’t
Predicting the Future: Anticipating Security Events with Data Analytics
Russia’s Energy Leverage Wanes in Parts of Europe
The U.S.-Japan Alliance: A Safe Harbor
President Obama's Counterterrorism Legacy
Dialing Up Controversy with China
China Officially Ties Internet Restrictions to its own National Security
Trumping Trade: Alternatives to TPP
The International Criminal Court, Under Pressure, Turns Eyes on U.S.
Egyptian and Israeli Cold Peace Has Never Been Warmer
Trump, Russia, and the CIA: Allies and Adversaries Confused
Hacking Against Cybercrime: The FBI's New Approach
Trumping Trade: The Future of NAFTA
Violence in Mexico Surges
Directed-Energy Weapons: Time to Focus
At the Crossroads Between East and West: Turkey and the World in 2016
The Perils of Connectivity: Cyber Insecurity in 2016
The Party Endures: China and the World in 2016
Cracks in the Union: Europe and the World in 2016
Eyes on the Kremlin: Russia and the World in 2016
Terrorists Don't Have to Win - They Just Have to Survive: Counterterrorism in 2016
A Perennial Task with No Finish Line: U.S. Defense Planning and Procurement in 2016
A Changing of the Guard: U.S. Counterterrorism Policy
Poland: Strong Defense Partner But Taking Undemocratic Steps
Land, Sea, and Air: U.S. Military Readiness in the Navy and Marine Corps
Syria's Tangled Trilateral Road to Peace
The UK’s New Surveillance Law: Security Necessity or Snoopers’ Charter?
South Korea’s Foreign Policy: Leaderless, but Not Rudderless
Jammeh to Cede Power, Leave The Gambia
Mali’s Instability: Advantage, Al-Qaeda in the Islamic Maghreb
Railguns: The Fast, the Furious—and the Future?
Swarming the Battlefield: Combat Evolves Toward Lethal Autonomous Weapons
Mixed Signals to Moscow: The Trump Administration's Russia Policy Puzzle
NATO’s Changing Face Under the Trump Administration
South Korea’s Presidential Crisis: Is Democracy Stuck in Park?
Power and the U.S. Presidency
Trump's Hour of Action: Recommendations for Cyber Policy
Passing the ‘Football’: The Future of U.S. Nuclear Policy
The Baltics Up the Ante in Defense
Take It or Leave It: The Future of the Two-State Solution
Trump and Trudeau: Fire and Ice
Cybersecurity in the Gulf: The Middle East's Virtual Frontline
Little Margin for Error in South China Sea Policy
Eritrea: A Potential U.S. Counterterror Partner
Trump Administration Faces Daunting Challenges in Afghanistan
The New Space Race
Autonomous Hacking Bots: Menace or Savior?
Myanmar’s Rohingya Crisis – Fertile Ground for Jihadis in Southeast Asia?
Cuba Lingers in Limbo
Designating the Muslim Brotherhood As Terrorists Is Complicated
Trump and the New Map of the Middle East
The New Technology of Humanitarian Assistance
Missile Defense: Blocking Threats or Blocking Diplomacy?
Flynn Controversy Raises New Questions
Doubling Down Against the Jihadist Message
Civilians and the Military Under Trump
The Gulf Cooperation Council Operates in a Tumultuous Region
DIY Defense Tech: More Countries Seek Advanced Homegrown Weaponry
The Vice Closes on Mosul: What Next?
U.S. Marines Head to Norway and Australia
Cyber Proxies: A Central Tenet of Russia’s Hybrid Warfare
The Future of Transatlantic Defense: More Europe
Trump’s NSC: A Bureaucratic Balancing Act
Tallinn Manual 2.0: Stepping Out of the Fog in Cyberspace
Defining Objectives for the U.S.-Iran Relationship
The U.S.-Japan Alliance: Reform and Uncertainty
India’s Cyber Potential: A Bridge Between East and West
Missile Defense: Targeting a Technological Solution
NATO Zeros In on Black Sea Security
Vying for Power in Iran
The TPP Without America
Disentangling the NSA and Cyber Command
The United Nations at a Tipping Point
Developing Special Operations Forces in China and Russia
Hawala Networks: The Paperless Trail of Terrorist Transactions
Objective: Raqqa
The Baltics: Veterans of Russian Cyber Operations
Security Concerns Complicate Investment Opportunities in Mozambique
What Is the “Deep State”?
Al Qaeda Takes Advantage in Syria
The War of Words Between Europe and Turkey
Jumping the Air Gap: How to Breach Isolated Networks
Sizing Up the Trump Defense Budget
Brexit Begins: Hurdles to a UK-EU Deal
India-Israel Relations: An Opportunity That Can’t Be Missed