For a long time the role of the independent reviewer of terror legislation was almost a contradiction in terms. Lord Carlile seemed to support everything the authoritarian New Labour government did without hesitation or criticism. He was virtually indistinguishable from a junior Home Office minister.
That's no longer the case. Today's report on the state's investigatory powers by David Anderson shows he is a very different beast. He ploughs a middle-of-the-road course, for which the title 'independent reviewer' seems an appropriate description.
His new report published today will outrage Ed Snowden-types. There is no proposal there to roll back the inordinate and extensive powers of the state to intrude into our private lives. But it will upset the government even more, because Anderson basically states there is a weak case for the powers envisaged by the snoopers' charter and proposes a test for them which the government will find difficulty to satisfy. So Snowden types will be offended, but opponents of the snoopers' charter will be pleased. Given the overlap between those groups, one imagines many people will also be conflicted, which is no bad thing.
We don't really know what will be in the investigatory powers bill, but we can presume it will be more aggressive than the communications data bill 2012, which was formulated to avoid a split with the Liberal Democrats – even though that split happened anyway. But at the very least the bill is likely to contain provisions for internet service providers to keep third party data, for instance from Skype or Facebook, in case the authorities want to see it. It is also likely to contain demands for them to keep your browsing history, albeit only up to the first 'slash' – so they'll know which site you visited but not necessarily what you did on there.
Public trust in intelligence agencies was damaged by the Snowden revelations
On the first, Anderson offers the government no support. "There should be no question of progressing proposals" for third party data unless a "compelling operational case for it has been made out (as it has not been to date)". Firm stuff.
On the second, Anderson sees the benefit of keeping some web browsing information but he demands a "detailed operational case" to be made with a "rigorous assessment" of its lawfulness (which he seems to think is suspect), its cost and intrusiveness. These are hurdles the government can overcome, but it will not thank him for carrying them into the playing field, especially when his predecessor was such a walkover. As he put it when speaking to journalists, "a lot more work needs to be done if government is going to go ahead with this".
Anderson obviously doesn't condone Snowden, but he accepts that his disclosures have benefitted debate and also threatened to poison public trust against the police and security agencies. This seems his driving motivation and it leads him towards proposals based on judicial oversight and transparency.
He wants a new Independent Surveillance and Intelligence Committee set up, composed mostly of judges, to do all sorts of things, from issuing the intercept warrants currently signed off by the home secretary (2,345 in 2014 alone) to potentially even doing the reports currently written up by the much-mocked Intelligence and Security Committee (ISC) in parliament, which has been a less-than-robust watchdog of the people it is supposed to be scrutinising. Any warrants which are sensitive, for instance of a lawyer or journalist, or unusual, for instance of someone's movements, would also get flagged and seen by the judges there.
The so-called 'dark net' provides a new challenge for law enforcement
Taking away the home secretary's role in signing off these warrants might upset the Home Office, but Anderson says it's international standard, not just in Europe, but also among 'five eyes' countries like the US, Canada and Australia with whom we share information. Having a judge sign off might also help convince Silicon Valley firms to do what UK authorities ask them, he suspects, because it correlates with the way it works in the US.
Anderson is keen to point out the existing regulatory mechanisms which he thinks do work, and these are quite judge-heavy. There's the Investigatory Powers Tribunal, which he says is growing in stature, or the various commissioners, of whom he evidently thinks quite highly. His commitment to seeking judicial standards on all fronts is commendable, as is his instinctive push towards simplification and comprehensibility. The creation of one body – as "transparent" and "public-facing" as possible – is smart. So is his idea that all the various bits of UK law relating to this issue should be gotten rid of and replaced with one law, which can be readily understood by all.
This was not a radical report and it does not challenge the activities of those in power, who have constantly expanded their demands for information without demonstrating the moderation or restraint which might help us trust them with it. But he is sage enough to recognise the fundamental problem of the securocrat mindset – that the type of mind tasked with constantly predicting threats in the future tends to overstate them. It is a fundamentally psychological problem and he does well to identify it and base his recommendations on the reality of it.
His solution does not seek to roll back the powers which already exist, but it does propose sensible reforms to improve them and holds back the tide of any new ones. No-one will be very pleased with it, and some people will be angered by it. Overall, the government will likely be angrier than privacy campaigners.