Draft bill would enhance British government’s surveillance powers as US works to limit NSA data collection following whistleblower’s call for debate

While in the US modest attempts have been made to curb the NSA’s powers in the wake of the Edward Snowden surveillance revelations, the UK is going the other way.

The British government on Wednesday published draft legislation on surveillance, its response to the documents disclosed by Snowden to the Guardian two and a half years ago revealing the scale of snooping by the NSA and its British sister agency, GCHQ.

The UK’s draft bill not only consolidates in law bulk data collection but it adds even more intrusive powers. Privacy, according to polls, is less of a concern for the British than security.

The draft bill runs to 180 pages but some of the most important issues are left unexplored. One of the biggest holes relates to a potential problem for US-British relations.

Theresa May unveils UK surveillance measures in wake of Snowden claims Read more

Both the NSA and GCHQ rely heavily on cooperation from communications companies, internet providers and some social media groups. Since Snowden revealed the scale of this, relations between the spy agencies and these companies have been strained, not least by the disclosure that the agencies were breaking into the companies through back doors and taking data.

With most of the big internet companies based in the US, this is potentially awkward for GCHQ. US-based companies might have to cooperate with targeted warrants but why should they accommodate more general requests for data, given the restrictions in place in the US?

The UK home secretary, Theresa May, was asked about this several times in the House of Commons on Wednesday but her answers were vague. Basically, she said, this is something still to be worked out.

In guidance notes attached to the draft bill, there is a key passage:

The draft bill places the same obligations on all companies providing services to the UK or in control of communications systems in the UK. However, the draft bill only provides for those obligations to be enforced through the courts against overseas companies in respect of communications data acquisition and (targeted and bulk) interception powers. The draft bill will include explicit provision to take account of any potential conflict of laws that overseas companies may face.

Resolution of this, if at all possible, is likely to require a new treaty between the US and UK covering data sharing. The former British ambassador to Washington Sir Nigel Sheinwald has already been in the States taking soundings.

The US reaction to Snowden has been erratic. While the attitude of the Obama administration has been ambiguous,Congress this summer passed into law the USA Freedom Act restricting bulk data collection.

Privacy campaigners in the US argue it does not go nearly far enough, but from an anti-surveillance point of view it is a vast improvement on what the UK is proposing. The UK draft legislation enshrines bulk collection into law. The UK has been engaged in bulk data collection for decades but it has done so in secret. This is now to be made explicit.

A requirement to store everyone’s web searches is in the UK draft bill, even though such a power is denied in the US and elsewhere around Europe.

One positive area for privacy campaigners is a shift toward increased involvement of the judiciary rather than politicians in both the issue of warrants and oversight, bringing the UK more in line with the US.

What is happening in the UK is in line with what is happening elsewhere in Europe in response to fears of Islamist terrorism. In France, Germany and the Netherlands, new legislation enhancing surveillance has either been passed or is being considered. But none have yet gone as far as Britain is proposing.

Snowden’s main motivation was to start a debate. The UK draft bill may hand even more intrusive powers to the intelligence agencies, but at least, as Snowden wanted, there is going to be a debate about it.