Reconceptualise investigatory powers again? an argument for a comprehensive single statute regulating the acquisition of expression-related data for investigative purposes by UK public authorities

Philip Bruce Glover

Research output: Other contribution

Abstract

Communications-related investigatory powers are ostensibly regulated within the Regulation of Investigatory Powers Act (RIPA) 2000, under the descriptive headings: 'interception of communications'; 'acquisition and disclosure of communications data' and 'investigation of data protected by encryption'. The scope, legality and extent of these hitherto infrequently examined powers experienced increased scrutiny following the controversial 2013 disclosures of fugitive United States National Security Agency contractor Edward Snowden, scrutiny generally founded on subjective conceptions of 'privacy', 'intrusiveness' or 'security'. This research however, adopts 'communications' as its conceptual common denominator. It comprehensively explores the separate politico-legal evolution of RIPA's communications-related investigatory powers, whilst identifying and critically analysing alternative statutory provisions that permit circumvention of RIPA's purported human rights-centric integrity. The detailed chronology provides conclusive evidence that current UK Secretaries of State and their executive agencies possess virtually unlimited communications-related information acquisition powers bequeathed by their predecessors. Perhaps more importantly, its simultaneous exposure of an executive culture of secrecy and deference to the UK's intelligence community assists in explaining why any fettering of the current powers will be so difficult to achieve. Drawing from Intelligence Studies, Information Science and Computer Science, this research logically deconstructs RIPA's communications-related powers, finding them more accurately describable as narrowly defined techniques facilitating the acquisition of communications-related data. Consequently, RIPA fails to envisage or regulate all types of acquisition, such as that obtained extra-jurisdictionally or via Computer Network Exploitation, thus partially legitimizing the status quo. The research also examines RIPA's seemingly all-encompassing definition of 'communication', finding it under-utilised, in that communications from the mind into electronic storage ('expression-related data') are not included. Consequently, the boundaries between 'communication', 'expression' and 'property,' and between RIPA's powers and those enabling Computer Network Exploitation are currently unnecessarily complicated. It concludes by recommending the enactment of a single statute regulating all investigative expression-related data acquisition.
Original languageEnglish
TypeDoctoral Thesis
PublisherUniversity of Aberdeen
Number of pages317
Place of PublicationAberdeen
Publication statusPublished - 2015

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public authorities
statute
communications
exploitation
act
regulation
communication
data acquisition
legality
secrecy
national security
information science
computer science
privacy
integrity
intelligence
human rights
electronics

Cite this

@misc{d74609106d9a459d8db6c114578e9d79,
title = "Reconceptualise investigatory powers again?: an argument for a comprehensive single statute regulating the acquisition of expression-related data for investigative purposes by UK public authorities",
abstract = "Communications-related investigatory powers are ostensibly regulated within the Regulation of Investigatory Powers Act (RIPA) 2000, under the descriptive headings: 'interception of communications'; 'acquisition and disclosure of communications data' and 'investigation of data protected by encryption'. The scope, legality and extent of these hitherto infrequently examined powers experienced increased scrutiny following the controversial 2013 disclosures of fugitive United States National Security Agency contractor Edward Snowden, scrutiny generally founded on subjective conceptions of 'privacy', 'intrusiveness' or 'security'. This research however, adopts 'communications' as its conceptual common denominator. It comprehensively explores the separate politico-legal evolution of RIPA's communications-related investigatory powers, whilst identifying and critically analysing alternative statutory provisions that permit circumvention of RIPA's purported human rights-centric integrity. The detailed chronology provides conclusive evidence that current UK Secretaries of State and their executive agencies possess virtually unlimited communications-related information acquisition powers bequeathed by their predecessors. Perhaps more importantly, its simultaneous exposure of an executive culture of secrecy and deference to the UK's intelligence community assists in explaining why any fettering of the current powers will be so difficult to achieve. Drawing from Intelligence Studies, Information Science and Computer Science, this research logically deconstructs RIPA's communications-related powers, finding them more accurately describable as narrowly defined techniques facilitating the acquisition of communications-related data. Consequently, RIPA fails to envisage or regulate all types of acquisition, such as that obtained extra-jurisdictionally or via Computer Network Exploitation, thus partially legitimizing the status quo. The research also examines RIPA's seemingly all-encompassing definition of 'communication', finding it under-utilised, in that communications from the mind into electronic storage ('expression-related data') are not included. Consequently, the boundaries between 'communication', 'expression' and 'property,' and between RIPA's powers and those enabling Computer Network Exploitation are currently unnecessarily complicated. It concludes by recommending the enactment of a single statute regulating all investigative expression-related data acquisition.",
author = "Glover, {Philip Bruce}",
note = "I wish to express my deepest and most sincere gratitude and respect for the love, support and loyalty (a quality I value more than any other) of the following persons, without whom this work would never have come about: My parents, Cecil and Mary Glover; RUC Inspector Melvyn Glass; Sergeant Robert Walkingshaw; the Police Rehabilitation and Retraining Trust; Colin Lloyd; Elaine Calder (for supporting me back into education) and Fiona Faulds (University of Aberdeen Lifelong Learning Centre). No words can adequately express my gratitude to my supervisor, Professor Peter (Pete) Duff, University of Aberdeen for his unwavering belief in me and for all the support he provided to me. I now look forward with no little excitement at the prospect of commencing an academic career at the University of the South Pacific School of Law, Emalus Campus, Port Vila, Vanuatu, only thanks to the support of Pete, Dr Ian Taggart (my second supervisor and so much more), Professor Roddy Paisley and Anne-Michelle Slater, Head of School, University of Aberdeen. The following University of Aberdeen staff are also thanked for their occasionally unwitting assistance and inspiration, as well as their explicit criticisms, humour and support: Angus Campbell (where did you find some of those gems you sent me?); Greg Gordon; Joanna Kunzlik; Louise Richmond; Carol Lawie; Sarah Duncan; Ilona Cairns; Dr Mohammed Janaby and the unsung heroes of the Taylor Law Library. Sincere thanks are due to Caroline Tabarrok for inadvertently providing me with a beautiful summer 2014 writing retreat in Victoria, Vancouver Island, and to Dr Benjamin Goold and his very helpful assistant Kara McLachlan for enabling my happy and memorable visiting scholarship to Allard Hall, UBC Vancouver. You enabled me to be with my soul mate, the inimitable Amber George, who, despite putting up with all the waves and troughs I created as this work was constructed, remains committed to marrying me in San Francisco in December 2015, before settling into life in Vanuatu with me. This work is also dedicated to three other beautiful girls I am delighted to know, each at different stages of their own life journeys; Kristen Glover, Tara Glover and wee Heidi Logan. I am very proud of you all and will love you forever. It is also in fond and respectful memory of the following sources of inspiration who I would have loved to have presented this work to, but for whom a Higher Power had made alternative plans: (Aunt) Pearl McCutcheon, to whom ‘investigatory powers’ would have been ‘oul nonsense’ but with whom I shared some ‘quare laughs’ and who remains sorely missed. As someone who has had the luxury in the lottery of life to survive Northern Ireland’s tragic, pointless political and sectarian conflict and build a new life, this thesis is dedicated to the memory all those Crown Servants who were not so fortunate and who sacrificed their lives. These heroes should never be forgotten, particularly RUC Inspector Derek Monteith, shot dead by the IRA in the presence of his family whilst off-duty and defenceless, 22nd January 1990. He unwittingly and unintentionally provided me with a new meaning and a new direction in my life. He also made me realise it is truly a precious gift. My final acknowledgment is to Henry O Neill, a man I never met, but whose name I first saw at the age of five on a stained glass window at O’Neill Memorial Primary School, Crossnacreevy, under whom the following inscription was written; ‘The pen is mightier than the sword’. I wholeheartedly agree with that assertion. Finally, this thesis could not have been produced without the funding awarded to me by the Arts and Humanities Research Council. Acknowledging the funding provided by organisations can sometimes appear clich{\'e}d and insincere. This funding body was the difference between me having to quit my research and completing it. So from the bottom of my heart, I thank the AHRC.",
year = "2015",
language = "English",
publisher = "University of Aberdeen",
type = "Other",

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TY - GEN

T1 - Reconceptualise investigatory powers again?

T2 - an argument for a comprehensive single statute regulating the acquisition of expression-related data for investigative purposes by UK public authorities

AU - Glover, Philip Bruce

N1 - I wish to express my deepest and most sincere gratitude and respect for the love, support and loyalty (a quality I value more than any other) of the following persons, without whom this work would never have come about: My parents, Cecil and Mary Glover; RUC Inspector Melvyn Glass; Sergeant Robert Walkingshaw; the Police Rehabilitation and Retraining Trust; Colin Lloyd; Elaine Calder (for supporting me back into education) and Fiona Faulds (University of Aberdeen Lifelong Learning Centre). No words can adequately express my gratitude to my supervisor, Professor Peter (Pete) Duff, University of Aberdeen for his unwavering belief in me and for all the support he provided to me. I now look forward with no little excitement at the prospect of commencing an academic career at the University of the South Pacific School of Law, Emalus Campus, Port Vila, Vanuatu, only thanks to the support of Pete, Dr Ian Taggart (my second supervisor and so much more), Professor Roddy Paisley and Anne-Michelle Slater, Head of School, University of Aberdeen. The following University of Aberdeen staff are also thanked for their occasionally unwitting assistance and inspiration, as well as their explicit criticisms, humour and support: Angus Campbell (where did you find some of those gems you sent me?); Greg Gordon; Joanna Kunzlik; Louise Richmond; Carol Lawie; Sarah Duncan; Ilona Cairns; Dr Mohammed Janaby and the unsung heroes of the Taylor Law Library. Sincere thanks are due to Caroline Tabarrok for inadvertently providing me with a beautiful summer 2014 writing retreat in Victoria, Vancouver Island, and to Dr Benjamin Goold and his very helpful assistant Kara McLachlan for enabling my happy and memorable visiting scholarship to Allard Hall, UBC Vancouver. You enabled me to be with my soul mate, the inimitable Amber George, who, despite putting up with all the waves and troughs I created as this work was constructed, remains committed to marrying me in San Francisco in December 2015, before settling into life in Vanuatu with me. This work is also dedicated to three other beautiful girls I am delighted to know, each at different stages of their own life journeys; Kristen Glover, Tara Glover and wee Heidi Logan. I am very proud of you all and will love you forever. It is also in fond and respectful memory of the following sources of inspiration who I would have loved to have presented this work to, but for whom a Higher Power had made alternative plans: (Aunt) Pearl McCutcheon, to whom ‘investigatory powers’ would have been ‘oul nonsense’ but with whom I shared some ‘quare laughs’ and who remains sorely missed. As someone who has had the luxury in the lottery of life to survive Northern Ireland’s tragic, pointless political and sectarian conflict and build a new life, this thesis is dedicated to the memory all those Crown Servants who were not so fortunate and who sacrificed their lives. These heroes should never be forgotten, particularly RUC Inspector Derek Monteith, shot dead by the IRA in the presence of his family whilst off-duty and defenceless, 22nd January 1990. He unwittingly and unintentionally provided me with a new meaning and a new direction in my life. He also made me realise it is truly a precious gift. My final acknowledgment is to Henry O Neill, a man I never met, but whose name I first saw at the age of five on a stained glass window at O’Neill Memorial Primary School, Crossnacreevy, under whom the following inscription was written; ‘The pen is mightier than the sword’. I wholeheartedly agree with that assertion. Finally, this thesis could not have been produced without the funding awarded to me by the Arts and Humanities Research Council. Acknowledging the funding provided by organisations can sometimes appear clichéd and insincere. This funding body was the difference between me having to quit my research and completing it. So from the bottom of my heart, I thank the AHRC.

PY - 2015

Y1 - 2015

N2 - Communications-related investigatory powers are ostensibly regulated within the Regulation of Investigatory Powers Act (RIPA) 2000, under the descriptive headings: 'interception of communications'; 'acquisition and disclosure of communications data' and 'investigation of data protected by encryption'. The scope, legality and extent of these hitherto infrequently examined powers experienced increased scrutiny following the controversial 2013 disclosures of fugitive United States National Security Agency contractor Edward Snowden, scrutiny generally founded on subjective conceptions of 'privacy', 'intrusiveness' or 'security'. This research however, adopts 'communications' as its conceptual common denominator. It comprehensively explores the separate politico-legal evolution of RIPA's communications-related investigatory powers, whilst identifying and critically analysing alternative statutory provisions that permit circumvention of RIPA's purported human rights-centric integrity. The detailed chronology provides conclusive evidence that current UK Secretaries of State and their executive agencies possess virtually unlimited communications-related information acquisition powers bequeathed by their predecessors. Perhaps more importantly, its simultaneous exposure of an executive culture of secrecy and deference to the UK's intelligence community assists in explaining why any fettering of the current powers will be so difficult to achieve. Drawing from Intelligence Studies, Information Science and Computer Science, this research logically deconstructs RIPA's communications-related powers, finding them more accurately describable as narrowly defined techniques facilitating the acquisition of communications-related data. Consequently, RIPA fails to envisage or regulate all types of acquisition, such as that obtained extra-jurisdictionally or via Computer Network Exploitation, thus partially legitimizing the status quo. The research also examines RIPA's seemingly all-encompassing definition of 'communication', finding it under-utilised, in that communications from the mind into electronic storage ('expression-related data') are not included. Consequently, the boundaries between 'communication', 'expression' and 'property,' and between RIPA's powers and those enabling Computer Network Exploitation are currently unnecessarily complicated. It concludes by recommending the enactment of a single statute regulating all investigative expression-related data acquisition.

AB - Communications-related investigatory powers are ostensibly regulated within the Regulation of Investigatory Powers Act (RIPA) 2000, under the descriptive headings: 'interception of communications'; 'acquisition and disclosure of communications data' and 'investigation of data protected by encryption'. The scope, legality and extent of these hitherto infrequently examined powers experienced increased scrutiny following the controversial 2013 disclosures of fugitive United States National Security Agency contractor Edward Snowden, scrutiny generally founded on subjective conceptions of 'privacy', 'intrusiveness' or 'security'. This research however, adopts 'communications' as its conceptual common denominator. It comprehensively explores the separate politico-legal evolution of RIPA's communications-related investigatory powers, whilst identifying and critically analysing alternative statutory provisions that permit circumvention of RIPA's purported human rights-centric integrity. The detailed chronology provides conclusive evidence that current UK Secretaries of State and their executive agencies possess virtually unlimited communications-related information acquisition powers bequeathed by their predecessors. Perhaps more importantly, its simultaneous exposure of an executive culture of secrecy and deference to the UK's intelligence community assists in explaining why any fettering of the current powers will be so difficult to achieve. Drawing from Intelligence Studies, Information Science and Computer Science, this research logically deconstructs RIPA's communications-related powers, finding them more accurately describable as narrowly defined techniques facilitating the acquisition of communications-related data. Consequently, RIPA fails to envisage or regulate all types of acquisition, such as that obtained extra-jurisdictionally or via Computer Network Exploitation, thus partially legitimizing the status quo. The research also examines RIPA's seemingly all-encompassing definition of 'communication', finding it under-utilised, in that communications from the mind into electronic storage ('expression-related data') are not included. Consequently, the boundaries between 'communication', 'expression' and 'property,' and between RIPA's powers and those enabling Computer Network Exploitation are currently unnecessarily complicated. It concludes by recommending the enactment of a single statute regulating all investigative expression-related data acquisition.

M3 - Other contribution

PB - University of Aberdeen

CY - Aberdeen

ER -