Collateral Intrusion and Suspicionless Surveillance

About

Public debate on intrusive investigatory powers invokes the concepts of perceived innocence and culpability, but our laws and governance structures do not properly take account of those ideas. Intrusive powers include bugs, undercover operations, bulk capture of internet connection records, and the hacking of encrypted communications. Appeals to innocence and culpability occur in assertions of the disinterest of intelligence agencies in ‘ordinary people’, and in the slogan that citizens should not be subject to ‘suspicionless surveillance’. They also occur in several high-profile controversies: the spying on the Lawrence family, the practices of the Special Demonstration Squad and the National Public Order Intelligence Unit, and the wiretapping of journalists and whistle-blowers. All can agree that it is wrong for people to be spied upon without good reason, especially where they are innocent. I argue that the proportionality of intrusive tactics is intuitively understood as a function of the perceived (a) seriousness of the misconduct that is to be prevented or apprehended, (b) harm involved in preventing or apprehending, and (c) culpability of the individuals affected by the intrusion. Surprisingly, UK governance of investigatory powers only takes proper account of the first two of those three factors, giving uneven consideration to the perceived culpability of the target for actual or threatened crimes.