Finding a Silver Lining in the UK Surveillance Controversy
By Carolyn O’Neil
The UK parliamentary committee reviewing the Draft Investigatory Powers Bill (dubbed the “snoopers’ charter” by critics) issued its recommendations earlier this month. Both the bill and the report have been rightfully lambasted by NGOs and tech companies alike for failing to protect privacy rights. The bill as drafted would empower British security agencies to engage in mass surveillance, undermine digital security, and demand private information without any meaningful judicial oversight. The government should dramatically revise the bill.
But on a more positive note, the report did include one important step forward on another front—the protection of whistleblowers. It recommended that the Investigatory Powers Commission, as overseer of the intelligence sector, be authorized to receive complaints from staff. Currently, intelligence sector staffers who discover classified evidence of government crimes have no right to disclose the information. There is no legitimate independent oversight body they can appeal to, and if they try to publish the information, they can be prosecuted for violating the Official Secrets Act.
The committee recommended that staff be able to report complaints to the commission without being prosecuted for doing so. As long as the information relates to “internationally recognized specified categories of wrongdoing” such as corruption, human rights violations, or crime, they would be protected. These categories are in line with the recommendations of the Tshwane Principles on National Security and the Right to Information, a set of guidelines drafted by civil society groups in a process spearheaded by the Open Society Foundations. The principles are cited in the parliamentary committee report.
This recommendation, while not going far enough, is a step in the right direction. The committee suggested this change in response to a submission from the London-based NGO Public Concern at Work (PCAW). In its statement, PCAW went much further in elaborating the kinds of legal protections needed to make whistleblowing effective in reporting or deterring crime. PCAW pointed out that the UK already has a robust legal framework that protects whistleblowers in the law enforcement sector; it argued that this framework should be extended to the intelligence sector, following the guidelines outlined in the Tshwane Principles.
The Tshwane Principles balance the needs of a government to protect certain information with the right of the public to hold the government accountable for its crimes. Whistleblowers would therefore be judged on how well they struck that balance, and on how hard they tried to report the information internally before going public. For example, any person seeking to disclose classified information should first bring it to an authorized oversight body. If such an oversight body does not exist, or if it ignores the information, then the whistleblower can go public. But they must publish only the information relevant to the alleged crime, and only if they reasonably believe that the public’s right to know outweighs the potential harm of publicizing it.
PCAW suggested a detailed system of internal reporting procedures, independent oversight, and authorities inspired by the Tshwane guidelines. The committee only took on part of their recommendations, but it was an important gain that should be preserved, no matter what happens to the bill next.
Until June 2016, Carolyn O’Neil was a program coordinator for the Open Society Justice Initiative.