The government has outlined new emergency powers to contain the spread of the Covid-19 coronavirus, which includes relaxing restrictions on mass state surveillance.
The measures are expected to be fast-tracked trough Parliament during the 329-page bill’s second reading on Monday, 23 March.
If passed, the bill would confer regulation-making power on the home secretary to change the warrant-issuing procedures contained within the Investigatory Powers Act (IPA) 2016.
Under the IPA, a warrant must be signed by the relevant secretary of state and then approved by a judicial commissioner for it to be lawful. Under the new powers, the home secretary will allow the investigatory powers commissioner to directly appoint temporary judicial commissioners for terms of no more than six months.
“Unless there are enough available judicial commissioners, there is a real danger that the warrantry regime would cease to function, which would have extremely significant impacts on national security,” said the Coronavirus Bill’s summary of impacts document.
In terms of urgent warrants, the IPA currently allows for ex post facto authorisation by a judicial commissioner within three working days.
Under the new law, the home secretary will be able to, at the request of the investigatory powers commissioner, extend the ex post facto period for up to 12 working days, quadrupling the time review limit.
“Greater surveillance could be ushered in through the back door, and this may have already happened,” said civil rights group Liberty in a statement on its website.
“The emergency legislation may increase state capacity to issue warrants to access our personal information and data for state surveillance. This includes intercepting digital communication, hacking into our computers and phones, giving access to some of our most personal and sensitive data, such as our religion, our sexual orientation, political views and medical history.”
Interference with citizens’ rights
Even the government’s own summary of impacts statement said urgent warrant extensions could lead to increased interference with citizens’ Article 8 rights to privacy, “but it is judged to be necessary and proportionate in the circumstances”.
A series of heavily redacted documents disclosed in court last year revealed that judicial commissioners had issued warrants for bulk surveillance after MI5 wrongly briefed them that it was meeting the data-handling obligations required under the IPA.
The documents revealed that MI5 had failed to protect legally privileged material and other key safeguards, resulting in “serious compliance gaps”, according to the then investigatory powers commissioner, Adrian Fulford.
On 19 March 2020, Sky News reported that the government is working with mobile network O2 to analyse anonymous smartphone location data to see whether people are following its social distancing guidelines.
An O2 spokesperson has since denied the claim, saying that mobile network operators are only in talks at this stage and that, although O2 has the ability to provide location data, it would only relate to broad mass movements and never individuals’ data, if provided.
However, even if the data is anonymised in compliance with UK and European Union (EU) data privacy laws, it may still be an infringement of privacy under the Human Rights Act, according to Toni Vitale, partner and head of data protection at JMW Solicitors.
“A lot depends on how the data is used,” he said. “If it is limited to creating heat maps showing where people are congregating, that might be OK. Some shopping centres already do this to show where shoppers are. Location data is commonly scraped from mobiles without users being aware.”
Companies that collect mobile phone location data usually say they have people’s consent to be tracked, and that the data is anonymous and secure.
But in December 2019, the New York Times, which obtained a file with more than 50 billion location pings from the phones of more than 12 million Americans, reported that “none of these claims hold up” under scrutiny.
“Yes, the location data contains billions of data points with no identifiable information like names or email addresses,” it said. “But it is child’s play to connect real names to the dots that appear on the maps.”
If the Coronavirus Bill is passed, then police, immigration officers and public health officials will also be given massively expanded powers.
This includes the ability to detain and isolate “potentially infectious persons”, including children, as well as to demand documentation or information from the suspected infected person.
Normally, a UK citizen does not have to give the police any personal information, even during an arrest or stop and search, but if a person fails to comply with the authorities once the new powers come in, it will be a criminal offence.
Other enforcement powers include the ability of the authorities to forcibly take biological samples for testing.
The bill will also permit the secretary of state to prohibit public events and gatherings, but does not include standard protections for strikes and other industrial action that exist within the Civil Contingencies Act 2004.
All of these measures are set to last for two years.
The Network for Police Monitoring (Netpol), which monitors and resists policing that is excessive, discriminatory or threatens civil liberties, said the legislation risks creating a situation where it quickly becomes normal for police to decide whether a public gathering is acceptable, even after the crisis abates and in circumstances that have little to do with stopping the spread of the virus.
“People are avoiding the term, but this is pretty much the definition of a police state,” said Netpol in a statement. “The government has not even considered the human rights implications of its decision to severely limit public gatherings between now and 2022.
“The bill’s summary of impacts talks solely about commercial gatherings in terms of the understandable need for compensation for venues. There is nothing about the need to protect rights to freedom of assembly as a vital mechanism for holding the government to account.”
Both Netpol and civil rights group Big Brother Watch (BBW) have condemned the measures as the “most draconian powers in peacetime Britain”.
Kevin Blowe, a coordinator at Netpol, said: “We think it says something deeply concerning about the government’s priorities that more time has been devoted to including draconian new powers in emergency legislation than into the kind of mass testing that the World Health Organization says is immediately needed.”
Silkie Carlo, director of BBW, added: “These breathtaking powers demand utmost caution, the closest scrutiny and the strictest time limitations.
“Many of the powers are unprecedented, unexplained and simply unjustified. The two-year duration of the act has not been justified and is totally out of step with the existing legal standards for emergency regulations.”
Liberty also pointed out that the proposed legislation does nothing to address what will happen to people who are already detained, either in prison or in immigration detention centres, and how they will be protected from the coronavirus.
Under the legislation, court proceedings are also set to be held remotely by making greater use of audio and visual technology.
On 17 March Computer Weekly reported that the Courts and Tribunals Judiciary was working with the Ministry of Justice and HM Courts and Tribunals Service to “work through the implications” of the virus outbreak.
“These arrangements would enable the use of fully video and video-enabled courts, so that proceedings could be conducted with all parties at remote locations,” said the Coronavirus Bill’s summary of impacts.