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Could EU curtail British government ‘Snooper’s Charter’?

Britain thinks of itself as a role model of liberty in the world but the new Investigatory Powers Act - the so-called snoopers’ charter - is ringing alarm bells in Europe. The UK may find itself under attack from European courts and European legislation in order to force a rethink.

The Western world is undergoing a social revolution with the rise of forces of the disenfranchised white working class, who feel that power has slipped away to elites and international institutions. They feel a decline in personal security. Incomes are stagnant. Jobs are disappearing.

Yet whenever I talked to British people in the wake of the Brexit vote, they didn’t phrase it that way. Perhaps it would have required too much self-awareness.

Rather, they talk about “Britain taking back control” and it is often accompanied by the belief that Britain is a freer, better country than the European states to which Britain had been yoked for too many years. The British have always been free, while the Europeans, well, you know, Gestapo, Stasi and “Vos papiers, s’il vous plait.”

Now we have the Investigatory Powers Act, the so-called ‘Snooper’s Charter’. Was the British Parliament asleep on that one? Its provisions are indeed quite far-reaching. The whistle-blower Edward Snowden called it the most extreme surveillance law in the democratic world. Not just the police but dozens of other organisations will be able to sift through your metadata - which will have been compulsorily stored by ISPs - without judicial authorisation.

There’ll be a record of every website visited: not the actual information, but the website data stored is often enough. Police and government departments will be able to use the search tool to find and access the records they need. Searches will be conducted at the discretion of the police. What’s more, the British government will be able to order companies to decrypt encrypted accounts and there will also be gag orders against the company to prevent it from talking about what's happening.

The legislation went through Parliament almost unnoticed amid all the hoo-ha about Brexit and commentators seem only now to have woken up to its implications. Paul Lashmar, a journalism professor at the University of Sussex, says that this level of government surveillance wasn’t deemed necessary “in four decades of the Cold War or 30 years of the Northern Irish troubles”. He says one victim is a free press: he thinks it’ll be much harder for journalists to conceal their sources.

A lobby group called Don’t Spy On Us (DSOU), consisting of Liberty, the National Union of Journalists, Privacy International, the Web Foundation and a group called Big Brother Watch, have warned that there are no provisions against intelligence sharing with Britain’s ally across the Atlantic and that accountability in the new act is weak. Use of the Investigatory Powers act is being monitored by the new Investigatory Powers Commission, but campaigners argue that the previous oversight body, the Parliamentary Intelligence and Security Committee, hardly did its job adequately. It was too close to the forces it was monitoring.

Ironically, Europe may be coming to the rescue. Members of the aforesaid DSOU group are taking the British government to court in two cases at the European Court of Human Rights (ECHR) in Strasbourg while the British Labour MP Tom Watson is taking Britain to court in the separate body that is the European Court of Justice. In an interim ruling by the ECJ’s advocate general in July, the British government was judged to be disproportionate in its proposed law and that surveillance of this magnitude should be used only in the “fight against serious crime”. What the advocate general decides, the full ECJ often backs.

Of course when Britain leaves the EU, it will no longer be bound by the ECJ, so what happens then is anyone’s guess (still bound by the ECHR, though). However, there may be another threat from Europe. The Europeans are very proud of their privacy standards and European media speculate that Brussels regulators will become uncomfortable with the level of mass surveillance permitted in the UK. Some of the Brexit negotiations will then revolve around data transfers. EU regulators may doubt that their citizens’ privacy will be respected under UK law. If they believe it isn’t, it could be harder for the service-oriented British economy to do business with Europe. The international service industry depends on large amounts of data transfer across borders.

There is a lot of resentment and disappointment towards Britain in Brussels at the moment. That Britain isn’t in with the EU project anymore. A lot of genuine anglophiles also see Britain not living up to its own standards of liberty - the liberty which the powerful British media frequently berates other countries for lacking. Now is the chance to send London a message.

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