A return of the “snoopers’ charter”?

The tragedies in Paris revitalised the Conservatives’ commitment to the Communications Data Bill.

The tragedies in Paris revitalised the Conservatives’ commitment to the Communications Data Bill, also referred to as the so-called “snoopers’ charter” by campaign groups. Since the issue has once again been brought to the fore within the context of combating terrorism and extremism, it has divided the British political spectrum. If it becomes law, the Bill would have significant implications for businesses operating in the UK.

The Bill, first introduced in 2012 by Theresa May and subsequently vetoed by Nick Clegg in 2013, was proposed in order to support authorities following technological advancements and enables the justice system to keep up with criminals’ use of new technologies. It would increase the power of authorities to compel communications service providers to generate and retain information about their uses for a longer period of time than what is currently the norm. At the time, Julian Huppert MP described the state of affairs as “based on scant evidence, scaremongering and a disregard for our personal lives; treating everyone as a suspect and our online activity as fair game”.

The recent resurgence of communication surveillance in the public domain has refocused the Bill to address the threat of terrorism and extremism online. The Prime Minister has stated that, should the Conservatives win the general election, the future government would “aim to deny terrorists ‘safe space’ to communicate online”. And most recently, last minute amendments were introduced to a cross-party group, consisting of former defence ministers, police chiefs and intelligence commissioners, which would de facto put a revised version of the Bill into law before the general election. The amendment has been criticised by The Open Rights Group, who stressed that the move would leave the Lords with inappropriate amount of time to consider the bill, and it would deny the Commons to consider the added clauses.

This revitalization of the Bill has two potential implications ahead of the general election; first, should it be introduced into law, it would pose an additional strain on communications and data businesses, and second, it provides a sharp dividing line between the political parties in the run-up to the election.

On the first point, the burden on business is primarily where to draw the line between compliance with requirements of the law and where to draw the line in terms of individual privacy. The problem with communications data is that that line is often blurry and links drawn from collected information are never as straightforward as perhaps hypothetical scenarios would indicate. The mere instance that data storage would have to be carried out on a more systemic basis, should a “snoopers’ charter” be put in place, places companies not only in a precarious situation, but also in a more demanding situation materially. This is because additional resources must be freed up to comply with the demands of a potential Bill.

Not to mention that consumer relations can become all the more strained. Technology companies and other businesses supply a service and are therefore dependent on maintaining a beneficial relationship to their clients. However, a Surveillance Bill would create a situation where the same companies would simultaneously gather information on their clients’ activities, while providing them with a service. It is easy to imagine that these two different positions could come into conflict.

For instance, tensions can be seen when discussions have taken place with social media companies to supply intelligence services. Commentators have argued that most technology companies say they will only comply with communication data legislation once the issue has been held up to public debate. Should a debate be held in public and garner acceptable levels of public support, the tension would be easier to reconcile.

Yet, ultimately, the predominant issue is that once information is handed over to authorities, it is often placed beyond the reach of public scrutiny – as one might expect with anti-terrorism. This makes it difficult to ensure legislation is being used properly and reasonably. While it is unlikely to be as extreme, a telling example is the revelation two years ago that NSA officials had been using communications data to spy on exes. Even when there are grounds to justify this type of data collection, the lack of assurance over the appropriate handling of communication data, alongside several public examples of overreaching by security forces, places companies’ consumer relations at risk with very little reward.

The question should not be whether companies want to stop terrorism – because that can never be guaranteed one way or another – but rather at what cost.

This bring us to the current election where the revived attempts to bring back the Communications Bill has become a divisive issue ahead of the general election. David Cameron has publicly announced his support for the Bill. In response, Nick Clegg has called the Bill unfit for purpose and a waste of resources and time. All this deepens the strain between the two governing parties, and Labour has placed itself somewhere in the middle – calling for a ‘cautious and considered’ approach to surveillance.

With the major parties slowly becoming less ideologically driven, areas such as surveillance become more divisive. It may initially appear to invite further political debate, but it also poses limitations on the nature of the debate as MPs have to toe the party line, particularly within an electoral context. The debate is certainly steeped in potential conflicts with individual liberties, but neither should we forget the implications and consequences for business.