Protecting National Security
A History of British Communications Investigation Regulation
This book contends that modern concerns surrounding the UK State’s investigation of communications (and, more recently, data), whether at rest or in transit, are in fact nothing new. It evidences how, whether using common law, the Royal Prerogative, or statutes to provide a lawful basis for a state practice traceable to at least 1324, the underlying policy rationale has always been that first publicly articulated in Cromwell’s initial Postage Act 1657, namely the protection of British ‘national security’, broadly construed. It further illustrates how developments in communications technology led to Executive assumptions of relevant investigatory powers, administered in conditions of relative secrecy. In demonstrating the key role played throughout history by communications service providers, the book also charts how the evolution of the UK Intelligence Community, entry into the ‘UKUSA’ communications intelligence-sharing agreement 1946, and intelligence community advocacy all significantly influenced the era of arguably disingenuous statutory governance of communications investigation between 1984 and 2016.
The book illustrates how the 2013 ‘Intelligence Shock’ triggered by publication of Edward Snowden’s unauthorized disclosures impelled a transition from Executive secrecy and statutory disingenuousness to a more consultative, candid Executive and a policy of ‘transparent secrecy’, now reflected in the Investigatory Powers Act 2016. What the book ultimately demonstrates is that this latest comprehensive statute, whilst welcome for its candour, represents only the latest manifestation of the British state’s policy of ensuring protection of national security by granting powers enabling investigative access to communications and data, in transit or at rest, irrespective of location.
Table of Contents
Part I: Introductory matters
1. Introductory matters
2. Rationalizing the Investigatory Powers Act 2016: Conceptual approach and key definitions
Part II: Secretive communications investigation governance: 1324?–1984
3. Secretive non-statutory regulation: Interception of communications 1324–1919
4. Secretive partial statutory governance: Interception of communications 1920–1984
Part III: Disingenuous statutory governance: 1984–2015
5. Disingenuous statutory regulation: Interception of communications: 1984–1999
6. Disingenuous statutory regulation: Interception of communications 2000–2013
7. Disingenuous statutory regulation: Communications data retention
8. Disingenuous statutory regulation: Obtaining retained communications data
9. The 2013 Intelligence Shock: Towards a modern and transparent legal framework
Part IV: Candid statutory governance: 2016–?
10. Avowal, transparency, and a modern and transparent framework: Rationalizing the Investigatory Powers Act 2016
Phil Glover was born and raised near Belfast, Northern Ireland. Having left school without qualifications, he served in the Royal Ulster Constabulary between 1983 and 2002. He returned to higher education in Scotland in 2008 and obtained an LLB (Honours) from the University of Aberdeen in 2012. He completed a PhD at the University of Aberdeen in 2015 before commencing a career in academia. He now teaches criminal law and conducts comparative national security-related research at Curtin University Law School, Perth, Western Australia.