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Posted: June 26, 2012I have just made a ‘short submission’ to the Joint Committee on Human Rights (JCHR) regarding the Draft Communications Data Bill – I’ve reproduced the contents below. I have reformatted it in order to make it more readable here, but other than the formatting this is what I sent to the committee.
The JCHR will not be the only committee looking at the bill – at the very least there will be a special committee for the bill itself. The JCHR is important, however, because, as I set out in my short submission, internet surveillance should be viewed very much as a human rights issue. In the submission I refer to a number of the Articles of the European Convention on Human Rights (available online here). For reference, the Articles I refer to are the following: Article 8 (Right to Respect for Private and Family Life), Article 9 (Freedom of Thought, Conscience and Religion), Article 10 (Freedom of Expression), Article 11 (Freedom of Assembly and Association) and Article 14 (Prohibition of Discrimination).
Here is the submission in full
Submission to the Joint Committee on Human Rights
Re: Draft Communications Data Bill
The Draft Communications Data Bill raises significant human rights issues – most directly in relation to Article 8 of the Convention, but also potentially in relation to Articles 9, 10, 11 and 14. These issues are raised not by the detail of the bill but by its fundamental approach. Addressing them would, in my opinion, require such a significant re-drafting of the bill that the better approach would be to withdraw the bill in its entirety and rethink the way that security and surveillance on the Internet is addressed.
I am making this submission in my capacity as Lecturer in Information Technology, Intellectual Property and Media Law at the UEA Law School. I research in internet law and specialise in internet privacy from both a theoretical and a practical perspective. My PhD thesis, completed at the LSE, looked into the impact that deficiencies in data privacy can have on our individual autonomy, and set out a possible rights-based approach to internet privacy. The Draft Communications Data Bill therefore lies precisely within my academic field. I would be happy to provide more detailed evidence, either written or oral, if that would be of assistance to the committee.
The premise of the Communications Data Bill is fundamentally flawed. By the very design, innocent people’s data will be gathered (and hence become vulnerable) and their activities will be monitored. Universal data gathering or monitoring is almost certain to be disproportionate at best, highly counterproductive at worst.
Even without considering the issues discussed above, there is a potentially even bigger flaw with the bill: on the surface, it appears very unlikely to be effective. The people that it might wish to catch are the least likely to be caught – those who are expert with the technology will be able to find ways around the surveillance, or ways to ‘piggy back’ on other people’s connections and draw more innocent people into the net. As David Davis put it, only the incompetent and the innocent will get caught.
The entire project needs a thorough rethink. Warrants (or similar processes) should be put in place before the gathering of the data or the monitoring of the activity, not before the accessing of data that has already been gathered, or the ‘viewing’ of a feed that is already in place. A more intelligent, targeted rather than universal approach should be developed. No evidence has been made public to support the suggestion that a universal approach like this would be effective – it should not be sufficient to just suggest that it is ‘needed’ without that evidence.
That brings a bigger question into the spotlight, one that the Joint Committee on Human Rights might think is the most important of all. What kind of a society do we want to build – one where everyone’s most intimate activities are monitored at all times just in case they might be doing something wrong? That, ultimately, is what the Draft Communications Bill would build. The proposals run counter to some of the basic principles of a liberal, democratic society – a society where there should be a presumption of innocence rather than of suspicion, and where privacy is the norm rather than the exception.
Dr Paul Bernal
Lecturer in Information Technology, Intellectual Property and Media Law
UEA Law School
University of East Anglia
Norwich NR4 7TJ