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2023 | OriginalPaper | Chapter

Regulating Strategic Communications Investigation: The Investigatory Powers Act 2016 (UK) as an Exemplar for India

Author : Phil Glover

Published in: Comparative Approaches in Law and Policy

Publisher: Springer Nature Singapore

Abstract

This chapter posits that India should consider reforming its strategic communications investigation regulatory framework using the UK’s Investigatory Powers Act 2016 (UKIPA) as an exemplar (Investigatory Powers Act 2016 (UK) c25). It offers three arguments. The first is founded on the UK government’s pre-enactment comprehensive ‘social evaluation’ process involving the publication of draft legislation, extensive stakeholder consultation, and the commissioning of two independent expert reviews (themselves consultative) (These are (i) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, A QUESTION OF TRUST: REPORT OF THE INVESTIGATORY POWERS REVIEW (2015, Her Majesty’s Stationery Office), hereafter IRTL, RIPR 2015. (ii) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, REPORT OF THE BULK POWERS REVIEW (Cm 9326, August 2016), hereafter IRTL, BPR 2016). Australia is currently replicating this social evaluation process in anticipation of electronic surveillance regulatory reform (See generally Richardson [1]). Social evaluation additionally involved avowing all formerly secret state investigative powers (Equipment Interference and bulk data access powers). The UKIPA’s comprehensive legislative candour has led to it being judicially endorsed as an exemplar of statutory compliance with international and regional human rights norms (See generally Big Brother Watch and Others v UK (Applications nos. 58170/13, 62322/14 and 24960/15) (Grand Chamber) 25 May 2021). The chapter argues that India would thus benefit from a similar legislative approach. A final ‘pro-homogeneity’ argument addresses why India might wish to undertake UK-modelled reform in this area. India’s progressive strategic relationships with the UK and with QUAD partner Australia and their rapidly developing trilateral relationship set the context (Discussed at length in Australian National University National Security Podcast, Working with India: Understanding the Limits and Potential (14 July 2022) https://play.acast.com/s/the-national-security-podcast/working-with-india-understanding-the-limits-and-potential). The argument is that, as their respective national security-focused policies increasingly homogenise, so should their respective national security (including communications surveillance) laws. The chapter concludes with a call for comparative scholarly critique.

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previous chapter An Australian-Based View on Reconstructing Copyright Licensing Laws

next chapter Analysis of Laws in Different Countries on Sedition

Investigatory Powers Act 2016 (UK) c25.

These are (i) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, A QUESTION OF TRUST: REPORT OF THE INVESTIGATORY POWERS REVIEW (2015, Her Majesty’s Stationery Office), hereafter IRTL, RIPR 2015. (ii) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, REPORT OF THE BULK POWERS REVIEW (Cm 9326, August 2016), hereafter IRTL, BPR 2016.

Universal Declaration of Human Rights, Article 12 ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’; Article 19 ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. <https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf>.

European Convention on Human Rights, Article 8(1) ‘Everyone has the right to respect for his private and family life, his home and his correspondence’; Article 10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Both rights are qualified at 8(2) and 10(2) respectively, in that signatory governments may interfere with them if the interference is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. <https://www.echr.coe.int/documents/convention_eng.pdf>.

Big Brother Watch and Others v UK (Applications nos. 58170/13, 62322/14 and 24960/15) (Grand Chamber) 25 May 2021.

Ibid., [426].

Ibid., [406]–[415].

Ni Loideain [2].

Ibid.

Wallace [3].

Discussed at length in Australian National University National Security Podcast, Working With India: Understanding the Limits and Potential (14 July 2022) https://play.acast.com/s/the-national-security-podcast/working-with-india-understanding-the-limits-and-potential.

Telegraph Act 1885, section 5, supplemented by the Information Technology Act 2000, section 69.

This chapter does not engage in a critical appraisal of India’s regulatory framework. A useful critique of India’s statutory provisions (principally lamenting a lack of proportionality and the existence of significant state discretion) appears in PRIVACY INTERNATIONAL, State of Privacy India https://privacyinternational.org/state-privacy/1002/state-privacy-india#commssurveillance.

India as a multi-aligned democracy is discussed in a detailed analysis of India’s trilateral relations with the UK and Australia involving Lisa Singh, Director of the Australia India Institute, and Dr David Brewster, Senior Fellow at the Australia National University National Security College and hosted by Will Stolz, Australia National University on their National Security Podcast (14 July 2022) (supra n 11).

Noble [4].

See generally GOV.UK https://www.gov.uk/government/publications/investigatory-powers-act-2016-codes-of-practice.

UK Home Office [5].

UK Home Office [5, p. 6].

Nisbet and Syme [6].

Ibid.

Ibid., emphasis added.

The Investigatory Powers Tribunal (UK). See generally https://www.ipt-uk.com/.

See generally Investigatory Powers Commissioner’s Office website https://www.ipco.org.uk/what-we-do/the-double-lock/.

UK Parliament [7].

UK HOME OFFICE, Draft Investigatory Powers Bill (Cm 9152, November 2015).

UK PARLIAMENT INTELLIGENCE AND SECURITY COMMITTEE, Privacy and Security: A Modern and Transparent Legal Framework (HC 1075-I).

IRTL, RIPR 2015 (supra, n 2).

ROYAL UNITED SERVICES INSTITUTE FOR DEFENCE AND SECURITY STUDIES, A Democratic Licence to Operate: Report of the Independent Surveillance Review.

UK HOME OFFICE, Draft Investigatory Powers Bill (supra n 25) Foreword, emphasis added.

Disclosure was considered as necessary in light of allegations of ‘state-sponsored hacking’ made to the UK Investigatory Powers Tribunal in Privacy International and Others v Secretary of State for Foreign and Commonwealth Affairs UKIPTrib (2016) 14/85 CH and 14/120–126 CH.

By virtue of secret Ministerial directions available under section 94 of the UK’s Telecommunications Act 1984.

Richardson [1]. A classified version was provided to the Government in December 2019 and a declassified version in July 2020.

Ibid., vol 2, 16 (Recommendation 75).

Commonwealth Government, Attorney-General’s Department [8].

Ibid.

AUSTRALIAN GOVERNMENT DEPARTMENT OF HOME AFFAIRS, Reform of Australia’s Electronic Surveillance Framework: Discussion Paper https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/reform-of-australias-electronic-surveillance-framework-discussion-paper.

AUSTRALIAN GOVERNMENT, DEPARTMENT OF THE PRIME MINISTER AND CABINET, MR MICHAEL L’ESTRANGE AO AND MR STEPHEN MERCHANT PSM, Report of the 2017 Independent Intelligence Review. https://www.pmc.gov.au/resource-centre/national-security/report-2017-independent-intelligence-review.

AUSTRALIAN GOVERNMENT ATTORNEY-GENERAL’S DEPARTMENT, Reducing the Complexity of Legislation https://www.ag.gov.au/legal-system/access-justice/reducing-complexity-legislation.

Commonwealth Government Response (supra, n 34) 3.

AUSTRALIAN GOVERNMENT, Discussion Paper (supra n 36) 8.

AUSTRALIAN GOVERNMENT, Discussion Paper (supra n 36) 6.

Ibid. Part 1 ask “who can access information under the new framework?” Part 2, “What information can be accessed?” etc.

Investigatory Powers Act 2016 (UK) Preamble, emphasis added—these are the principal powers explored herein.

See now IPA 2016, Part 2 and Part 6.

IPA 2016 (UK), Part 5 and Part 6.

Privacy International and Others v Secretary of State for Foreign and Commonwealth Affairs and GCHQ [2016] UKIPTrib 14_85-CH.

Ibid., [3].

Ibid., [89] emphasis added.

The claimants successfully ‘overturned’ the UKIPT ruling on Issue 4, which related to property interference warrants issued under section 5 of the Intelligence Services Act 1994 (UK).

Privacy International and Others v United Kingdom (Application Number 46259/16).

ARTICLE 19 AND THE ELECTRONIC FRONTIERS FOUNDATION (EFF), Third-Party Intervention in Privacy international v United Kingdom (Application Number 46259) https://www.article19.org/wp-content/uploads/2019/09/Amicus-Brief-UK-A19-EFF-Sept-2019-Proofread.pdf.

International Institute for Strategic Studies [9].

UK Home Office [10].

NI LOIDEAIN, supra n 8.

IRTL, BPR 2016 (supra, n 2) 21–22.

Ibid.

The ASD website states that ‘details of our signals intelligence and cyber capabilities (protective and disruptive) are necessarily secret … As an analyst, you may be involved in: analysis of communication systems analysis of foreign signals intelligence developing capabilities to perform your analysis using software development skills developing new methods of analysing and exploiting data for intelligence or information security purposes investigating large and complex data sets offensive cyber operations preparation of short-term or long-term information reports to government protecting Australia from cyber adversaries as part of ASD’s Australian Cyber Security Centre solving cryptological problems using advanced mathematical concepts translating foreign language material’. See generally ASD webpage https://www.asd.gov.au/about.

Sakuhar [11].

Intelligence Services Act 1994 (UK), section 3(1) (a) GCHQ are ‘to monitor, make use of or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material …’.

Rachel Noble (supra n 15).

The United States National Security Agency (NSA) have declassified and released many formerly top-secret documents relating to this longstanding agreement, The BRUSA is available at NSA/CSS, ‘UKUSA Agreement Release 1940–1956’, https://www.nsa.gov/Portals/70/documents/news-features/declassified-documents/ukusa/agreement_outline_5mar46.pdf.

Ibid. (emphasis added).

Despite not stating ‘all traffic’, there appears no limitation to the amount of type of traffic to be collected, emphasis added.

Bauer describes this as the discipline of deciphering a ciphertext without having access to the keytext. See Bauer [12].

Ibid.

Telegraph Act 1885 (INDIA), section 5(2), The Central or State government … if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence; Intelligence Services Act 1994 (UK) section 3(2), [GCHQ] functions … be exercisable only … in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty’s Government in the United Kingdom; or (b) in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or (c) in support of the prevention or detection of serious crime.

Deeks [13].

Australia’s then Minister for Home Affairs Karen Andrews, Foreign Intelligence Legislation Amendment Bill 2021 (Australia) Revised Explanatory Memorandum. The bill was enacted and amended Australia’s Telecommunications (Interception and Access) Act 1979, section 11(c) accordingly.

IRTL, BPR 2016 (supra, n 2).

Ibid. The latter power is not relevant to communications investigation.

See generally UK Foreign, Commonwealth and Development Office [14]. For example, Part III, ‘Defence and Security’ states India and the UK will work in strategic partnership to strengthen efforts to tackle cyber, space, crime and terrorist threats and develop a free, open and secure Indo-Pacific Region. Our shared interests will underpin greater cooperation in multilateral fora where a strengthened UK India relationship will build understanding among diverse partners on international security and will help set global rules for cyber security and space taking into account their respective interests.

UKPISC, PRIVACY AND SECURITY (supra n 26).

On the Capenhurst Tower scandal and the Liberty ECtHR challenge see Glover [15].

Liberty and Others v UK (2009) 48 EHRR 1.

Regulation of Investigatory Powers Act 2000 (UK) c.23 Part I, Chapter I regulated interception of communications, and Chapter II regulated the acquisition of communications metadata from communications service providers.

Big Brother Watch and Others v UK (Grand Chamber) (supra n 5).

IRTL, BPR 2016 supra (n 2) 23.

Ibid.

Ibid., 25.

Ibid.

Big Brother Watch and Others v UK (supra, n 5) [136].

Patel [16].

See generally IRTL, RIPR 2015 (supra n 2) 49–69.

Ibid.

Australian Signals Directorate, ‘History’ (webpage) <https://www.asd.gov.au/about/history>.

Privacy International v Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, GCHQ and Others UKIPTrib 13/92/CH.

WITNESS STATEMENT OF CHARLES BLANDFORD FARR, Privacy International v Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, GCHQ and Others UKIPTrib 13/92/CH. https://www.privacyinternational.org/sites/default/files/2018-03/2014.05.16%20Witness%20Statement%20of%20Charles%20Blandford%20Farr.pdf.

Ibid.

Telecommunications (Interception and Access) Act 1979 (AU), section 5(1).

Information Technology Act 2000 (India), section 69, emphasis added.

COMMONWEALTH OF AUSTRALIA, DEPARTMENT OF THE PRIME MINISTER AND CABINET, 2017 Independent Intelligence Review 79.

RACHEL NOBLE (supra n 15).

On the disingenuous nature of the Interception of Communications Act 1985 (UK) and Regulation of Investigatory Powers Act 2000 (UK) see GLOVER, PROTECTING NATIONAL SECURITY supra (n 47).

Liberty and Others v UK (2009) 48 EHRR 1 (challenging bulk interception), Big Brother Watch and Others v UK (Applications nos. 58170/13, 62322/14 and 24960/15) (challenging bulk interception) and Privacy International & Others v UK (Application No 46259 challenging equipment interference).

NORA NI LOIDEAIN, supra (n 8).

Weber and Savaria v Germany (Application no. 54934/00). The principles are outlined at [95]: ‘In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed’.

The parties were: Big Brother Watch; English PEN; Open Rights Group; Dr Constanze Kurz; Bureau of Investigative Journalism; Alice Ross; Amnesty International Limited; Bytes For All; The National Council for Civil Liberties (“Liberty”); Privacy International; The American Civil Liberties Union; The Canadian Civil Liberties Association; The Egyptian Initiative For Personal Rights; The Hungarian Civil Liberties Union; The Irish Council For Civil Liberties Limited and The Legal Resources Centre.

100

RIPA 2000, s8(4)–(6).

101

The legal challenge was also to whether the UK’s acquisition of intercepted material from foreign governments and intelligence agencies, as alleged in the published disclosures of Edward Snowden, wa sin accordance with law.

102

EUROPEAN COURT OF HUMAN RIGHTS, UK surveillance regime: some aspects contrary to the Convention (Press Release ECHR 165 (2 ‘021) 25 May 2021) emphasis added.

103

Zalneriute [17].

104

Klass and Others v Germany (Application No 5279/71) at [78] for example, ‘the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime’.

105

Esen [18].

106

Weber and Savaria (supra n 98) [104] emphasis added.

107

Ibid., [88].

108

Big Brother Watch and Others v United Kingdom (Application Numbers 58170/13, 62322/14, 24960/15) First Section Judgment, September 2018 [308].

109

Big Brother Watch and Others v UK (Grand Chamber) supra, n 5 [361].

110

Ibid., [425].

111

Principally the establishment of the Investigatory Powers Commissioner’s Office (IPCO)—see generally <https://www.ipco.org.uk/>.

Goold [19].

Patel [16].

Ibid.

Ibid.

Ibid.

Ibid.

ZALNERIUTE, supra (n 103).

119

AUSTRALIAN GOVERNMENT, 2017 Foreign Policy White Paper, Chapter 3 https://www.dfat.gov.au/sites/default/files/minisite/static/4ca0813c-585e-4fe1-86eb-de665e65001a/fpwhitepaper/foreign-policy-white-paper/chapter-three-stable-and-prosperous-indo-pacific/indo-pacific.html.

120

See generally the AUSTRALIAN GOVERNMENT, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE, Regional Architecture: Quad https://www.dfat.gov.au/international-relations/regional-architecture/quad.

121

Australian Government, Department of Foreign Affairs and Trade [20].

122

Australian Government, Department of Foreign Affairs and Trade [21].

123

Tirkey [22].

124

Senator the Honorable Marise Payne [23].

125

Ibid., emphasis added.

126

PUBLIC SAFETY CANADA, <https://www.publicsafety.gc.ca/cnt/ntnl-scrt/fv-cntry-mnstrl-en.aspx>.

DENNIS RICHARDSON AC, Comprehensive Review of the Legal Framework of the National Intelligence Community (Commonwealth of Australia, December 2019) ( Richardson Review).

NORA NI LOIDEAIN, EU DATA PRIVACY LAW AND SERIOUS CRIME: DATA RETENTION AND POLICYMAKING (OUP, forthcoming) 30.

BEN WALLACE MP, Minister of State for Security, Investigatory Powers Act 2016 Consultation: Codes of Practice (February 2017) Foreword https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/593725/IP_Act_codes_consultation_Feb2017_FINAL_WEB.pdf.

RACHEL NOBLE (Director-General Australian Signals Directorate), Long histories, short memories- the transparently secret Australian Signals Directorate (presentation to the National Security College, Australian National University, Canberra 1 September 2020) https://www.asd.gov.au/publication/speech-transparently-secret-asd.

UK HOME OFFICE, ‘Investigatory Powers Act 2016 Consultation: Codes of Practice’ (2017, HMSO).

TOBY NISBET and GEOFFREY SYME, No way to build a highway: Law, social justice research and the Beeliar Wetlands (2017) 34 ENVIRONMENTAL PLANNING LAW JOURNAL 162.

UK PARLIAMENT, What is a draft bill? (UNDATED) https://www.parliament.uk/about/how/laws/draft/.

COMMONWEALTH GOVERNMENT, ATTORNEY-GENERAL’S DEPARTMENT, Commonwealth Government response to the Comprehensive Review of the legal Framework of the National Intelligence Community by Mr Dennis Richardson AC (Commonwealth of Australia 2020) 3.

INTERNATIONAL INSTITUTE FOR STRATEGIC STUDIES, Cyber capabilities and national power: A net assessment (28 June 2021) https://www.iiss.org/blogs/research-paper/2021/06/cyber-power---tier-three.

10.

UK HOME OFFICE, EQUIPMENT INTERFERENCE CODE of PRACTICE (March 2018, HMSO) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/715479/Equipment_Interference_Code_of_Practice.pdf.

11.

BEHAM SAKUHAR, ‘ Intelligence and Defence Cooperation in India’ in M TUZUNER, INTELLIGENCE COOPERATION PRACTICES IN THE 21ST CENTURY: TOWARDS A CULTURE OF SHARING (IOS Press, 2010) 34–35.

12.

F BAUER, ‘Cryptanalysis’ in van TILBORG HCA (ed) ENCYCLOPAEDIA OF CRYPTOGRAPHY AND SECURITY (Springer, Boston, MA, 2005) 87.

13.

ASHLEY S DEEKS, ‘Regulating Foreign Surveillance Through International Law’, in FRED H CATE and JAMES X DEMPSEY (eds) BULK COLLECTION: SYSTEMATIC GOVERNMENT ACCESS TO PRIVATE-SECTOR DATA (Oxford University Press, 2017) 349–354.

14.

UK FOREIGN, COMMONWEALTH AND DEVELOPMENT OFFICE, 2030 Roadmap for India-UK future relations (Policy Paper, May 2021) https://www.gov.uk/government/publications/india-uk-virtual-summit-may-2021-roadmap-2030-for-a-comprehensive-strategic-partnership/2030-roadmap-for-india-uk-future-relations.

15.

P GLOVER, PROTECTING NATIONAL SECURITY: A HISTORY OF BRITISH COMMUNICATIONS INVESTIGATION REGULATION (Routledge 2021), 168–174.

16.

Priti Patel, Hansard Written Statement (HCWS759) to the UK House of Commons 31 March 2022 https://hansard.parliament.uk/Commons/2022-03-31/debates/22033139000028/GrandChamberEcthrJudgmentInBigBrotherWatchAndOthersVUK.

17.

MONICA ZALNERIUTE, Procedural Fetishism and Mass Surveillance under the ECHR: Big Brother Watch v. UK, VerfBlog, 2021/6/02, https://verfassungsblog.de/big-b-v-uk/, DOI: https://doi.org/10.17176/20210602-123858-0.

18.

RITA ESEN, Intercepting Communications in Accordance with Law (2012) 76(2) JOURNAL OF CRIMINAL LAW 762.

19.

BENJAMIN GOOLD, Liberty and others v The United Kingdom: a chance for another missed opportunity (2009) PUBLIC LAW 5–14.

20.

AUSTRALIAN GOVERNMENT, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE, First Australia-India-France Trilateral Dialogue (Joint Statement 9 September 2020) https://www.dfat.gov.au/news/media-release/first-australia-india-france-trilateral-dialogue.

21.

AUSTRALIAN GOVERNMENT, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE, Joint Statement on the Supply Chain Resilience Initiative by Australian, Indian and Japanese Trade Ministers (15 March 2022) https://www.dfat.gov.au/news/media-release/joint-statement-supply-chain-resilience-initiative-australian-indian-and-japanese-trade-ministers-0.

22.

AARSHI TIRKEY, Minilaterals and their impact on Indo-Pacific security (2020) https://futureshub.anu.edu.au/minilaterals-and-their-impact-on-indo-pacific-security/.

23.

SENATOR THE HONORABLE MARISE PAYNE, Joint Statement on the Inaugural India-Australia Foreign Ministers’ Cyber Framework Dialogue (12 February 2022) https://www.foreignminister.gov.au/minister/marise-payne/media-release/joint-statement-inaugural-india-australia-foreign-ministers-cyber-framework-dialogue.

Title: Regulating Strategic Communications Investigation: The Investigatory Powers Act 2016 (UK) as an Exemplar for India
Author: Phil Glover
Publisher: Springer Nature Singapore
Book: Comparative Approaches in Law and Policy
Print ISBN: 978-981-9944-59-0

Electronic ISBN: 978-981-9944-60-6

Copyright Year: 2023
DOI: https://doi.org/10.1007/978-981-99-4460-6_20

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