The snoopers’ charter: JCHR submission from Paul Bernal

Paul Bernal is a Lecturer in Information Technology, Intellectual Property and Media Law at UEA Law School. He has blogged about his ‘short submission’ to the Joint Committee on Human Rights (JCHR) regarding the Draft Communications Data Bill. His conclusion:

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.