UK's web super-snoop powers could be extended to councils
'We don't know what we don't know yet'
The UK Border Agency (UKBA), local councils and other bodies have until the end of next week to justify their right to access citizens' communications records.
Home Secretary Theresa May appeared to offer a minor concession to civil liberties campaigners by considering excluding various public organisations from her proposed internet surveillance law .
This is despite the fact that those selected authorities asked to see private communications data roughly 5,000 times in 2011, far fewer than the 500,000 attempts made by spooks, police agencies and the taxman in the same year.
Public bodies were privately told by the Home Office that they have until 20 July to come up with compelling reasons as to why the draft law - if approved by Parliament - should grant them continued access to citizens' communications records.
Local authorities already have powers to pry into this data thanks to the Regulation of Investigatory Powers Act (RIPA). But an amendment due later this year  will restrict their access to sensitive information. This follows apparent misuse of the law by councils to investigate minor offences.
Arguably, however, the local councils could see their surveillance powers widened by secondary legislation - which allows the government to change the law after it is passed, if the wording of the act allows this.
During the second half of a joint select committee hearing of MPs and peers, who are scrutinising May's Communications Data Bill, it was revealed by UKBA's director of operational intelligence Gillian McGregor that the Home Office had asked an unspecified number of public bodies to offer up their own business case.
She explained that the Border Agency will submit its application on the reasons why it needed access to comms data – which includes subscriber information, usage and traffic data – to the Home Office, before adding: "It [the right to access the data] could happen through secondary legislation."
Other public body representatives, who were also on the panel giving evidence on Thursday, echoed that comment.
Paul Bettison of the Local Government Association (LGA) said the Home Office had suggested an explanation as to why councils should be able to gain access to comms data. He dismissed accusations that local authority officials had abused their RIPA powers, who said he wanted to "dispel the myths that we've been frivolous in the past".
Bettison told the select committee, which is chaired by Lord Blencathra, that there was "significant confusion" about the bill.
He added: "It would be helpful to have a clear message from the government on this."
The Financial Services Authority was represented on the panel by its legal head of enforcement, Daniel Thornton, who admitted: "We would prefer not to have to make a business case."
Unsurprisingly, all of the public bodies present at the hearing on Thursday were quick to trot out examples of why access to communications data was not simply their desire, but had in fact become "essential" to battling crime in the digital age.
Thornton said the FSA was seeing "more and more sophisticated techniques" being employed by criminals. He gave the examples of secure websites, disposable mobile phones and self-destructing USB devices as examples of what he perceived to be a rapidly changing landscape.
UKBA's McGregor agreed, adding that "serious criminals are making increasing use of a more sophisticated internet" adding that said crooks were also using "smartphone techniques".
Meanwhile Nick Tofiluk – director of regulatory operations at the Gambling Commission – who was also present on the panel pointed to the complexity of P2P gaming platforms that are used on an "international basis".
He tautologically added: "We don't know what we don't know yet."
On the issue of a warrant system being used when public bodies wanted access to comms data, both McGregor and Thornton said it would prove a hindrance to their investigations both for reasons of cost and potential delay.
What is it that cops want that they don't have today?
Earlier in the joint committee hearing, the HMRC and top cops from the Metropolitan Police Authority, the Child Exploitation and Online Protection Centre, the Association of Chief Police Officers and the Serious Organised Crime Agency gave evidence to MPs and peers in Westminster.
But when the Met's assistant commissioner Cressida Dick was quizzed earlier this week about which communications data was specifically withheld – senior spooks had described it as a "25 per cent shortfall" when it comes to current criminal investigations – she failed to provide a detailed answer.
"I'm not technically qualified and I am never myself an applicant," she said. "I can't say what data is missing."
However, when pressed on the matter, Dick added that she didn't want to publicly reveal that information because it could fall into the hands of criminals.
She further admitted that some communication service providers (CSPs) - a spurious category of online players that includes, for example, Google and Facebook - had withheld data requested by the police.
SOCA's director general Trevor Pearce told the committee that his agency had "averted 240 potential threats in the last 12 months" due to access requests to communications data being granted.
But he warned: "There are opportunities lost or not available."
Meanwhile, ACPO's assistant chief constable Gary Boatridge rejected the claims that the extension of surveillance requested within May's bill would lead to police "looking for a needle in a field of haystacks".
He said: "I wouldn't agree with that... these matters are very carefully considered."
CEOP's chief exec Peter Davies agreed, saying such an accusation "suggests speculative requests," a claim he said "goes against all my experience".
Later on during the session, Dick said that Scotland Yard took "any breach of data very seriously". She added "regretfully" there had been incidents where her officers had violated the Met's national computer database.
She insisted, however, that any access to comms data under May's proposed legislation would have much stronger protection and be more heavily controlled.
When asked about what currently happens to police staff who attempt to access comms data without putting in a formal request, the panel agreed that it would be tough for those individuals to get past the security checks in place.
Dick said it was "like different legs of a chair looking at each other".
And, it turns out, very little disciplinary action has been taken against staff abusing those powers, which according to HMRC's director of criminal investigation Donald Toon "reflects the fact that it is very tightly controlled" rather than demonstrating any incompetence among cops spying on other cops to prevent breaches. ®