Britain’s spies will have the right to hack into smartphones and computers enshrined in a new law, The Times has learnt.
Powers that give MI5, MI6 and GCHQ a “dizzying” range of electronic surveillance capabilities will be laid out in the investigatory powers bill next month, in a move that will bolster the confidence of the intelligence agencies but pave the way for a row with privacy campaigners.
Civil liberties groups have repeatedly raised the alarm over hacking, which allows spies to take control of electronic devices and access all documents, photographs and communications. The new legislation will give hacking a firmer footing in law, making it harder to challenge in the courts.
Increased use by criminals of encryption techniques, which scramble data and make it unreadable when intercepted, has prompted the government to set out hacking powers more clearly, sources close to the Home Office said. It comes against the backdrop of a growing threat from Islamist terrorism.
While interception interrupts communications as they happen, hacking gives spies control of a computer or smartphone and all the information it contains. Devices can usually be accessed by exploiting a security vulnerability in the software.
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Once inside, intelligence agents can install software that hijacks smartphone cameras to take photographs of targets and commandeer microphones to eavesdrop on conversations, privacy experts say.
Peter Sommer, a digital evidence expert, said: “Increasingly, [intelligence agents] can’t read communications sent over the internet because of encryption, so their ability to get information from interception is rapidly diminishing. The best way around this is to get inside someone’s computer. This is an increasingly important avenue for them.”
The investigatory powers bill, which is expected in the coming weeks, will modernise and simplify the rules governing interception, surveillance and monitoring of communications. The hacking provisions were not proposed in the draft communications data bill, which has been dubbed a snoopers’ charter by critics.
The bill will clarify the use of the agencies’ general powers to interfere with “property” after obtaining a warrant from the home secretary. The power comes from the Intelligence Services Act 1994, which does not deal specifically with computers or hacking.
In February, the government admitted for the first time that intelligence agencies were using the power as a basis to hack into computers and use them for surveillance. The admission came with the publication of a draft code of conduct setting out how the agencies should carry out “equipment interference”, listing “computers, servers, routers, laptops, mobile phones and other devices” as potential targets.
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Critics argue that the general power in the Intelligence Services Act and the draft code of conduct do not provide an effective legal basis for hacking.
David Anderson, QC, the independent reviewer of terrorism legislation, recommended in June that the government should put the hacking powers on a firm legal footing. In his report on investigatory powers, he said that the intelligence services had based their hacking activities on general powers that “do not find clear and explicit basis in legislation”.
Mr Anderson said that hacking, known as computer network exploitation, “presents a dizzying array of possibilities to the security and intelligence agencies”. While some methods were appropriate, “many are of the view that there are others which are so intrusive that they would require exceptional safeguards for their use to be legal”, he said. “A debate is clearly needed.”
A Home Office spokesman said yesterday that the draft bill would “update the legal framework governing the use of investigatory powers to ensure law enforcement and the security and intelligence agencies have the powers they need, subject to strong safeguards and robust, independent oversight”.
James Welch, the legal director at Liberty, said: “Hacking . . . carries unlimited and untested potential for government to act against the security and economic interests of its own citizens, whether consciously or otherwise.”