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OPINION: The Search and Surveillance Bill started as a review by the Law Commission to tidy up and modernise the various search and surveillance powers held by police, councils and regulatory bodies.
Unfortunately, the Commission decided its job was to tidy up the law rather than actually looking into what powers were required and then comparing that to what was acceptable in a democratic society.
The first attempt was such an affront to civil liberties that it was sent back to be reworked, but the new version still has many problems.
The first major problem with the Bill is that it tries to do too much and standardise too much.
Most people probably agree that the police should be able to get a warrant to use video and audio surveillance in the investigation of serious crimes and the Bill allows this.
But would they accept that their local city council should also be able to apply for a warrant to put people under surveillance? The government claims it can already get a search warrant and that surveillance isn't much different - something we find hard to agree with.
The government makes much of the fact that these search and surveillance powers have to be authorised by an independent authority such as a judge.
What it plays down is that the new law allows the Attorney General to appoint anyone he likes as an issuing authority (although some of the more intrusive powers must be authorised by a judge). Furthermore, looking at the last few year's statistics about interception, call data and tracking warrants, no applications for warrants are ever refused.
The government also claims that the Bill includes oversight through detailed reporting requirements.
But while these will give us an idea of the statistics, they won't help us with the concrete examples.
More importantly, how can you complain that you have been unfairly or illegally targeted if you never know that you and your family were under secret video surveillance in the first place? It is disappointing that the Bill does not include an after the fact notification system to ensure accountability.
Falls down in some some technology areas
The issues around production and examination orders that take away the right to silence have already been well covered by others.
At Tech Liberty we made submissions around some of the technical issues involved in search warrants.
The final version of the Bill makes a reasonable attempt at allowing a search warrant to include remote servers (that is, if they have a search warrant for your PC they can also use it to login to your webmail), but it has dropped the ball on searches of PCs and digital storage.
The intention in the Bill is very clearly that searches will be targeted and limited by the conditions of the search warrant, but the reality of forensic examinations of computer systems is very different.
Forensic IT tools copy the entire system and then present investigators with lists of the files on the computer, including filenames, titles, abstracts of documents and thumbnail images of pictures. Investigators might not be actively “trawling” for material but it will be presented to them anyway and this information is now “in plain view” and can be seized and acted on, making a mockery of the limitations defined in the search warrant.
This isn't only a problem for people involved in potentially illegal dealings as there are are also major privacy implications. An officer executing a search warrant at someone's home to seize business papers would never think to seize the family photo album, but if they’re taking a computer the family’s digital photos would be swept up along with medical records, personal letters and possibly even documents subject to legal privilege. The change in technology means that searches will now be even more invasive than they were in the past, an issue the Bill is silent on.
We are not opposed to all surveillance and search powers as long as they are used with restraint and under proper oversight.
At the same time it is important to consider that search and surveillance are a major intrusion on the lives of those affected by them.
A simple search of your house can cause major disruption and damage and no one would be very happy if they found out that they'd been spied on in their home by police video cameras. Any use of these powers not only takes away the privacy rights of the target but also their family and friends who get caught up in it.
This means that it's important to get these laws right and to ensure that they are only used as a last resort when other methods fail.
We don't believe the government has made a good enough case to justify many of these extensions of powers in the Search & Surveillance Bill.