The Cut-and-Paste Attempt to Sneak Surveillance Powers into UK Law

Can't get your controversial surveillance laws passed? Simply cut and paste them into another bill.

That's what a quartet of Lords are hoping to do today in Britain's Parliament with the Counter-Terrorism and Security Bill, which now features sections that digital activists at the Open Rights Group have said are "nearly ​identical" and appear to be copied a​nd pasted from the scrapped Communications Data Bill, often referred to as the "snoopers' charter."

The bill sought to require telcos to hold onto communications data including browsing history, email metadata (such as who you sent an email to, and when), voice calls, and text messages for a full year, and give security services access. First introduced in 2012, it was defeated thanks to a lack of support from the Conservative government's coalition partners, the Liberal Democrats.

Despite this defeat, Prime Minister David Cameron and Home Secretary Theresa May have repeatedly tried to reintroduce the bill—notably after terror incidents, including the murder of Lee Rigby in Woolwich and the Charlie Hebdo shootin​gs in Paris. The Conservatives have also promised to reintroduce the full bill should they win the upcoming general election in May, but they may be saved the trouble thanks to four Lords, who added most of it into the counter-terrorism bill currently being debated in their section of parliament. If they pass it, MPs in the House of Commons must still approve it, but critics say now is the best time to stop it going forward.

What sections of the draft Communications Data Bill have actually been included? The Open Rights Group's executive director Jim Killock told me that "all the data gathering, storing and analysis capabilities" have been copied over to the anti-terror bill, and "all that was reduced was the number of agencies with access to the data."

"As far as we can tell, the main provisions of the Comms Data Bill have been copied over—the ability to order comms providers to retain data, and to put in place 'filtering mechanisms' that allow authorities to search through the data, all without the need for warrants, just with a designated 'senior officer' of the relevant authority to authorise it," added Paul Bernal, a lecturer in tech law at the University of East Anglia.

"This is the full Snoopers' Charter, with the exception that it has a sunset clause of 31st December 2016," he said. "This doesn't provide much protection, however, as once powers are granted it's much harder to remove them, and we don't know what the government will be like in 2016."

"I am seriously concerned about this move; it is an attempt to insert clauses from the scrapped Communications Data Bill—scrutinised and rejected by a joint Commons and Lords Committee of which I was a member—into the Counter-Terrorism Bill," Liberal Democrat MP Julian Huppert told me. "I fought hard to get the Communications Data Bill killed off because it went much further than it needed to. What we are seeing now is a last-minute attempt to revive discredited legislation in light of the Paris terror attacks. There is no opportunity for these amendments to be properly scrutinised in the Commons or the Lords and, unlike the failed Communications Data Bill, they don't provide for judicial oversight."

The communications clauses were introduced by four Lords with security and defence backgrounds from across the political spectrum: ex-Metropolitan police commissioner Lord Blair; former Liberal Democrat terror expert Lord Carlile; former Conservative defence secretary Lord King; and former Labour defence minister Lord West.

Lord Carlile defended the move t​o the Guardian, saying that if security services said the powers were necessary "then we needed to act now rather than wait for reports that we do not know when they will be completed."

Whether the Counter-Terrorism Bill goes forward with the copied-and-pasted comms clauses is currently in the hands of the unelected Lords. ORG's Killock called on them to "respect their constitutional role as a revising chamber" in their first debate on the bill today. "We are sure most Lords will be open to that argument and see the amendment for what it is, a political stunt."

If the bill continues with the added communications sections, it will return to MPs in the House of Commons for another debate, where it could also be stopped, and "at which point the government position would become clear—and so would that of the opposition," noted Bernal. That's a key point, as both the Conservatives and previous Labour governments have supported increasing surveillance powers. "The real danger is if Labour decide they want to look 'tough' and support the amendment for short term political gain," he said. "That is where the next key bit of lobbying needs to happen."