Last week saw the adoption of the Investigatory Powers Act – a comprehensive legislative framework that regulates the surveillance powers of intelligence agencies and other public authorities. While the government has maintained that the new law is “world-leading”, critics have pointed out that it allows for some of the most far-reaching and intrusive surveillance practices in the world, and have asked: “What part of the world are we leading exactly: North Korea, Cuba, China and Saudi Arabia?”
The development of what was initially the Investigatory Powers (IP) Bill took over a year, was preceded by several other attempts to create what has been called a “snooper’s charter”, and was accompanied by strong criticism from civil society, industry and several parliamentary commissions. Yet it survived significant opposition largely unchanged and eventually became law “with barely a whimper”. How did this happen? As part of an ESRC-funded research project at Cardiff University, we interviewed politicians as well as representatives of industry, security agencies, and campaign groups during the development phase of the IP Bill, and we explored the dynamics that led to its adoption.
The Bill was an outcome of contradictory developments. On the one hand, the Snowden revelations triggered widespread public criticism, court cases against the British government, and official reviews such as the Anderson Report. All these demanded significant revisions to British surveillance practices and policies. On the other hand, the Conservative majority in the coalition government of 2010-15 had advanced plans for a Communications Data Bill that would expand surveillance capabilities. Those plans were halted by the junior party in the coalition, the Liberal Democrats, but re-emerged after the Tory election victory in 2015. This time around, there was neither a coalition partner, nor any viable parliamentary opposition, to moderate the Tory plans. The lack of detailed technical knowledge by most Parliamentarians did not help, nor – as we were told in our interviews – a traditional “deference to the agencies”. As a result, both the Commons and the Lords were ineffective in serving as spaces of governmental control.
This role was taken over in part by civil society. Digital rights and civil liberties organisations were vocal throughout the process and were increasingly recognized as a legitimate actor with relevant expertise. Involvement in some of the more detailed debates on policy reform allowed them to engage with the process and develop specific proposals for improving the Bill. However this also meant that fundamental opposition to surveillance was less pronounced, as was public awareness-raising and protest. And while a number of organisations worked hard on developing detailed and thorough contributions throughout the policy process, most of them were eventually ignored by government.
The technology business sector served as another voice of strong criticism against an expansion of surveillance capabilities, and this was underlined by high-profile cases such as the conflict between Apple and the FBI as the Bill was being developed. In part, the more dissident position of internet businesses was a strategic effort by industry to re-gain consumer trust, but it led to a further source of opposition – yet one which was equally ignored.
While an overwhelming majority of technology experts and policy stakeholders were critical about the Bill or rejected it outright, for the public the proposed law did not seem to be a major concern. Media coverage was limited, and reporting on surveillance typically legitimized, rather than questioned, state surveillance practices, as our research as shown. Our focus groups with members of the public demonstrated that concerns about the monitoring of online communication exist, but knowledge on how exactly it works, for what purpose it is conducted, and how we can protect our privacy, is limited. This has led to widespread resignation in the face of mass surveillance, and to an perception that we termed surveillance realism. This is underlined by the dominant security discourses in public debate, led by voices from government and law enforcement. Rather than addressing a wider range of human security issues, these discourses have been limited to a narrow set of national security concerns. Taken together, ‘surveillance realism’ and security discourses have (mis-)led to the impression that the public is uninterested, which has allowed the government to prioritize the agendas of security services.
Those agendas took centre stage as security and intelligence agencies were involved in policy reform discussions early on and enjoyed the closest access to decision-makers. The Home Office (which is responsible for domestic security) was at the centre of the policy reform process, while interests that may have offered a counterbalance were based at other government departments. Thus a combination of specific interests, political and institutional settings, and public discourses enabled the government to ignore significant expert opposition and push through its planned Bill.
Just before the IP Bill was adopted, the Investigatory Powers Tribunal (IPT) ruled that intelligence agencies had been unlawfully collecting personal data for 17 years. This was the latest in a series of court rulings which had criticised British surveillance policy. It demonstrated once more that the government had two options for how to respond to the post-Snowden critique: Review and reduce surveillance powers, or legalise and expand them. With the new Investigatory Powers Act, it chose the latter.