Privacy, privilege and the need for encryption

In the view of our civil liberties and privacy lawyers, the British establishment has a unique disdain for the notion of privacy.

There is a vast sprawling apparatus of surveillance law available to it and not satisfied with the notorious RIPA (Regulation of Investigatory Powers Act 2000) the Government spent years trying to push through the 'Snoopers Charter', finally succeeding last year with the passing of the Investigatory Powers Act 2016 into law - a law which has been described by NSA whistleblower Edward Snowden as "the most intrusive and least accountable surveillance regime in the West".

Since taking over at the Home Office Amber Rudd has continued Theresa May's fight against the right to privacy. Her sights are currently aimed at messaging apps that make use of end-to-end encryption, and she wants tech companies to do more in handing over communications data to the Government on demand. This she says will give the Intelligence Services and Police greater capabilities for preventing terrorist attacks such as those which took place in Manchester and Westminster earlier this year.

She continues to use the somewhat disingenuous argument that "real people" are not interested in encryption, and it is only criminals and terrorists that seek to use these features. Law abiding citizens should have no reason to fear any Government attempts to weaken them.

This is a flawed argument. Individuals are right to seek to protect their communications from the prying eyes of the state. This should not require justification in the first place but there are a number of reasons why anyone would want encryption. There are certain situations in which it is generally understood to be particularly important that privacy is protected, such as journalists communicating with their sources, or lawyers communicating with their clients.

Unfortunately the British authorities do not have a good track record for upholding this right, even in those contexts. Take for example the police's routine targeting of journalists covering left wing protest groups as 'domestic extremists'. Or the drawn out legal battle that Libyan dissident Abdel-Hakim Belhaj had to go through in order to try and stop the Intelligence Services examining his legally privileged communications with his lawyers . Saunders Law also acts for two lawyers who were placed under surveillance by undercover police officers in the Undercover Policing Inquiry, raising serious concerns about whether their privileged communications with their clients were intercepted.

Worryingly, this trend seems set to continue. Under the new Investigatory Powers Act 2016 regime there are no guaranteed protections for legally privileged communications. The Act also brings into law a whole host of new powers such as equipment interference, granting the power to hack directly into a user's device. This puts the state in a more powerful position than ever before, and one which is unprecedented in Western democracies.

Encryption is one of a vanishingly small number of measures that individuals can use to protect their privacy from the State. Any attempts to have it watered down will have serious civil liberties implications. Where legally privileged communications are no longer respected the State even risks damaging the rule of law and the administration of justice itself.

Contact Saunders Law Solicitors - Expert Data Protection & Privacy Matters Lawyers

The civil liberties solicitors and privacy solicitors here at Saunders Law have experience of handling data protection and privacy matters for businesses and individuals. Our lawyers will also offer an initial, no-obligation discussion to advise you on the law and how it affects you. Call us on 02076324300 or make an enquiry online.


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