Don't call this the surveillance status quo – it's a cross-party stitch-up

Instead of debate, we've had the usual scare tactics, Mike Harris writes for The Independent.

The official line from the three party leaders is the emergency legislation to be pushed through by the Executive with the collaboration of Her Majesty's Opposition next week, is merely the continuation of the “status quo” on surveillance. No new measures, they say, and some new safeguards too. What we are being led to believe is that a brave Nick Clegg faced down calls for a new Communications Data Bill (the Snooper's Charter) and this legislation is merely a tidying up exercise.

It's a nonsense. Our hard-fought-for liberties are being eroded by a cozy consensus not within the political parties, but by Ed Miliband, Nick Clegg and David Cameron alone, who, fearing public opinion, are bending over backwards to accommodate the wishes of a clique in the Home Office. Make no mistake, the legislation that will be railroaded through parliament next week is a “diet” Communications Data Bill which grants the government more power than before to request data from across the globe. None of the safeguards, with the exception of the sunset clause, are actually in the Bill. We have to take the word of the party leaders these safeguards will actually be implemented. It's not even clear if the sunset clause (ending the legislation on 31 December 2016) is worth a jot. It's possible what is called a statutory instrument, a mini amendment, could delete the clause and extend the legislation forever without even a full vote by our parliamentarians.

One of the reasons for the legislation, known as the Data Retention and Investigatory Powers Bill (or as wags have tagged it, #DRIP), is being taken forward is a judgment by the European Court of Justice (the EU's court – not to be confused with the European Court of Human Rights) which struck out the EU's Data Retention Directive. This directive forced ISPs across Europe to store all your data logs for a year. After a case was taken to the Court, judges found this legislation was a breach of your fundamental rights and so annulled it. In particular, the judges said that the state could ask ISPs to track the data of suspected criminals, paedophiles and terrorists – or even people in a certain City for a limited period of time - but it couldn't ask for everyone's data to be stored. Remember innocent until proven guilty?

So the Home Office needed to bring forward legislation if it wanted to force ISPs to retain the data of criminals and malcontents. The Home Office knew this three months ago. Tom Watson MP asked competent and decent Home Office Minister James Brokenshire MP about this on 16 June, where he had the chance to reveal the government would be bringing forward legislation on this matter. He didn't. Instead, the three party leaders stitched-up a deal behind closed doors without consulting (or even asking) the MPs who we elect to represent us. This is 2014, not 1814. We don't just expect our MPs to be able to read and critique legislation before it's passed – as citizens, we expect to have our say as well.

Worse still, the legislation doesn't just cover criminals and terrorists (as the Court allowed) instead it will allow the Government to retain everyone's data. This clearly fails to comply with the European Court of Justice ruling – and is also likely to breach the European Convention on Human Rights. Yes, you read that right, the Liberal Democrats are pushing through legislation with the Tories and Labour that will breach your human rights. Whoever comes to power next May will find themselves in an unnecessary and dirty fight with both Courts in Strasbourg. Brexit moves ever closer.

Finally, the legislation looks like a land grab by the Home Office. It's hard to form a solid legal opinion in 24 hours, but it seems that this legislation could make legal some of the unsavoury practices revealed by whistleblower Edward Snowden. International privacy expert Caspar Bowden has pointed to the fact that much of legislation will be enabled through regulations which are not yet published. He believes this could enable programmes like TEMPORA which can capture the entire metadata (location, who you communicate with, who you associate with) of everyone in the UK.

The government also wants to extend the scope of its data capture to become “extra-territorial”. That is extending the scope to both overseas operators (such as Facebook and Google) but also to overseas persons. When parliamentarians looked at this measure (which was included in the draft Communications Data Bill) they were concerned it would open up a global free-for-all where China could retaliate and demand the private data of Chinese citizens (who could be dissidents) held in the UK. There will also be serious new legal sanctions if services abroad refuse to pass over your data, even if in doing so they would be breaching your fundamental rights. This is a step-change in the scope of surveillance overseas – but one the three party leaders have tried to brush-over.

After the Edward Snowden revelations we saw bipartisan action in the US where leftist Democrats co-operated with Tea Party Republicans in defence of the American Constitution. The patriotic stance was to be against violations of the rights of all Americans, and to curtail intelligence agencies that had grown out of control. Across the pond, in Westminster our closeted political elite kept their heads low predicting a weary electorate would not notice. Instead of debate, we've had the usual scare tactics. There's something unseemly and un-British about what we now see. The three leaders expect their MPs to toe the line and vote through new legislation that extends surveillance powers and ignores an important court decision. They expect their MPs (with notable exceptions such as Tom Watson and David Davis) not to worry about debating the legislation, nor to need the time for pre-legislative scrutiny. They expect us, the voters, to forget by the time of the election. On Monday, please call your MP and say you won't forget.

Mike Harris is Campaign Director of Don't Spy On Us.

This piece on #DRIP was originally published in The Independent.

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