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July 18, 2014 | Jim Killock

Dear Theresa, see you in court

Parliament has a done a terrible thing. They’ve ignored a court judgment and shoved complex law through a legislative mincer in just three days.

But in doing so they won’t have had the final word. You’ve already shown them the growing public opposition to mass surveillance. There was incredible action from supporters: 4458 of you wrote to your MPs with even more phoning up on the day of the vote.  Together we helped 49 MPs rebel against the Data Retention and Investigatory Powers Bill. It may have passed, but thanks to you they know that we do not agree.

Help us challenge DRIP: Join now

Whilst Parliament swallowed Theresa May’s tired arguments that “terrorist plots will go undetected” and “these are powers and capabilities that exist today", she failed to make a compelling argument that holding everyone’s data is necessary and proportionate. Frankly, the Government was evasive and duplicitous, and they were in a hurry to cover their tracks. 

Tom Watson MP described the process as “democratic banditry, resonant of a rogue state. The people who put this shady deal together should be ashamed.”

And the European Court’s decision was very clear: blanket data retention is unlawful and violates the right to privacy. 

The courts will have the final say on whether DRIP breaches human rights. And no matter what David Cameron believes, the UK has international obligations.  The European Convention on Human Rights, the European Charter of Fundamental Rights and our own Human Rights Act – all exist to defend our rights and are where we will be able to challenge DRIP.

And that’s what we will do.

The ECJ has stated once that blanket data retention is unlawful. This means we have strong grounds to challenge the new legislation on the same basis. That’s where we need you. We can initiate legal action with your help: please join ORG today.

https://www.openrightsgroup.org/join 

We’re already meeting with lawyers and taking Counsel’s advice to work out the best way to take the Government to court. We will work with every other group who is willing to help. But a major legal battle like this is going to be tough. The more resources we have, the more we’ll be able to do to stand up to DRIP.  

Our supporters do a huge amount to stand up for human rights. Together we won against the Snoopers' Charter and against ACTA. Right now joining ORG is a way to ensure we can challenge and stop DRIP.

UPDATE Friday 5pm: Over 200 people have joined ORG in the last week, and 100 of those today. 

UPDATE Saturday 9am:  Over 260 people have joined to support us in the fight against #DRIP.

UPDATE Sunday 11am:  Over 300 people have joined to support us in the fight against #DRIP. Please join to support our work!

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July 17, 2014 | Jim Killock and Elizabeth Knight

DRIP: Convenience or Necessity?

At the heart of the DRIP debate is a very tricky problem: surveillance will contribute to policing. It isn’t the only way to do policing, it may not be the best way, but it will produce what appear to be actual results. Politicians can claim that, very occasionally, it may even be the only way to solve a crime.

What is beyond doubt is that the UK police seem to use data on a pretty routine basis. Some will be ‘retained data’, some will not. But our agencies make around 500,000 RIPA demands a year, under internal supervision.

This stands in stark contrast to most of the continent. While Poland seems even more data-hungry than the UK, nearly half of our EU partners have now abandoned data retention. Many were very reluctant in the first place. Data requests in some countries are negligible: Germany for instance records low thousands of requests.

What can we conclude? We’d have to argue that the UK was an extremely different place to Europe, where crime could only be detected through data to conclude that data retention is truly “essential”. This seems pretty unlikely although we’ve found people are willing to argue that the UK really is different. Far more likely, it seems to us is that the police are just used to using data as a routine practice in the UK, where other police forces are not. After all, it is cheap and easy: from a police point of view it could save costs even if they don’t solve many more crimes.

The question for the UK to answer is not whether data can contribute to policing but whether it is justified to retain data of innocent people on a blanket basis. The charge that Jack Straw and Lord Howard made in Parliament was that civil libertarians who asked for “targeted” retention were asking the police to be “clairvoyant” as they would have to know in advance whether somebody would commit a crime and become of interest. That is the argument for blanket retention in a nutshell. We don’t know who the criminals will be so we will keep all of the data all of the time.

The problem with this argument is that it swiftly extends itself to every kind of activity you can imagine. Your smart meter can tell the police if you’re growing cannabis or playing with chemicals, your Oyster card can help pinpoint whether you were near a crime scene; your car’s GPS tools can tell the police where you went. Your library might tell us if you’ve an unhealthy interest in chemistry or nuclear physics. Why not keep all of this data? Failing to do so, in Jack Straw’s terms, risks aiding criminals.

That’s why the line being drawn at “necessary and proportionate” is so important. This is the legal test for removing someone’s right to privacy. The alternative—justifying any invasion of privacy on the basis of its possible efficacy in extreme cases—means anything goes.

Under Article 8 of the European Convention on Human Rights, any interference with the right to privacy must be “necessary in a democratic society.” An interference will be considered “necessary in a democratic society” if:

(1) it answers a “pressing social need”; and

(2) it is proportionate to the legitimate aim pursued and if the reasons justifying it are “relevant and sufficient”.

(S and Marper v the United Kingdom, Applications nos. 30562/04 and 30566/04)

An interference will not be considered disproportionate if it is restricted in its application and effect, and safeguards exist to prevent arbitrary treatment. (MS v Sweden 74/1996/693/885) It was on proportionality and necessity grounds that the UK's DNA database was found to violate Article 8, owing to “the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences.” It failed to “strike a fair balance between the competing public and private interests.” (S and Marper v the United Kingdom)

A similar test is set out in the Charter of Fundamental Rights, where “subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives...” (Article 52). This was the test applied by the Court of Justice of the European Union (CJEU) in the Digital Rights Ireland case.

As the CJEU noted, proportionality requires that acts are “appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives” (paragraph 46). In practice, this means that “legislation must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data” (paragraph 54).

It was on the grounds of necessity and proportionality that the Data Retention Directive was found unlawful. It did not “lay down clear and precise rules governing the extent of the interference” and entailed “a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary”(paragraph 65). In particular, blanket retention was disproportionate (paragraph 59).

The Data Retention and Investigatory Powers Bill does nothing to address blanket retention. Blanket data retention is disproportionate on the basis that it goes far beyond what is required to meet the aimof investigating and prosecuting crime. It therefore cannot be said to be strictly necessary. Blanket retention exceeds the limits of what is appropriate. And the reasons provided by the Government are sufficient to justify some retention, but are not sufficient to justify blanket retention.

The Government is portraying the choice as retention of all data or no retention at all. This is a false dichotomy. here is an alternative: targeted retention. This would comply with the CJEU judgment. Targeted retention may be used not only in circumstances where a suspect has been identified, but also permits retention of all data in a particular area or all data of people belonging to a particular organisation or to everyone for a specific period of time (see paragraph 59 of the judgment). In addition, the police have many other methods and powers, including seizing physical evidence. And it should also be noted that some data is retained for business purposes in any event. Further, as all types of data proliferate, the necessity of data retention becomes more questionable.

For all these reasons Jack Straw is wrong to assert that for targeted retention to be successful one would have to know in advance whether somebody would commit a crime. He may be right that in very rare cases a criminal will be caught using blanket retention who would not be caught using targeted retention. But constructing a universal retention regime on the basis of a few rare incidents is the very definition of disproportionate.

In striking a balance between the legitimate aim and privacy, Courts also take account of harms including the fear instilled by ubiquitous surveillance, the chilling effect on freedom of speech and the risk of future abuse. Policing is not the only interest to be taken into account. Politicians should also pause to consider whether they would be content for rogue governments to grant themselves the broad powers contained in DRIP. We must apply the same standards to all governments to avoid being open to the charge of hypocrisy.

There is also a debate to be had regarding whether the resources dedicated to building up mass surveillance systems could be better spent on targeted and more intelligent investigations.

The recent vote also saw many Lib Dems moving towards accepting data retention, on the pragmatic justification that it can be useful in crime detection. Whilst the Government is undoubtedly correct that it is convenient for the police to rely on communications data, this does not mean it is necessary or proportionate for them to do so.

Currently all three main parties are sacrificing the idea of “necessary and proportionate” from being one that limits data retention to one that relies purely on access controls. This leaves us no defence against a quickly developing surveillance state. The Liberal Democrats should think very carefully about whether they have made the right decision in backing the DRIP Act. They could make the argument that this was an emergency measure and they do not support the idea of blanket collection. We have to hope that they quickly attempt to make the distinction rather than backing the Home Office view, which is designed to justify growing pervasive surveillance.

The same applies to the Labour party who should use the luxury of opposition to reconsider the mistakes they made in government. It would be wishful thinking to expect the Conservative party to change its mind while in power. However their backbenchers should recall their experience of Labour's excesses and the Conservative view of these in Opposition. Politicians need to do a great deal more than accepting the Home Office's assertions without challenge, which stand in sharp contrast to recent European human rights judgments.

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July 16, 2014 | Jim Killock

Scottish NGO results

As published by STV, we found a number of Scottish websites blocked by different filters provided by ISPs and mobile operators, apparently by mistake, without of course informing the website owners. Here is the list.

We have removed most of the “dead” websites we found in the dataset. Some blocks were not innacurate—they included sites which had been abandoned an then squatted, for instance. There were around 9,000 websites in the list, available from the Scottish Charity Regulator.

The STV article discussing these results is here.

Network URL Status Created
BT http://www.willowsanimals.com blocked 07/07/14 00:32
BT http://www.waysidecentre.org.uk blocked 07/07/14 00:35
EE http://www.thesoundlab.org.uk blocked 07/07/14 00:45
O2 http://www.thesoundlab.org.uk blocked 07/07/14 00:45
Sky http://www.thesoundlab.org.uk blocked 07/07/14 00:45
Vodafone http://www.thesoundlab.org.uk blocked 07/07/14 00:45
EE http://www.sut.org blocked 07/07/14 00:52
O2 http://www.sut.org blocked 07/07/14 00:52
Sky http://www.sut.org blocked 07/07/14 00:52
Vodafone http://www.sut.org blocked 07/07/14 00:52
EE http://www.streetkid.org.uk blocked 07/07/14 00:53
O2 http://www.streetkid.org.uk blocked 07/07/14 00:53
Sky http://www.streetkid.org.uk blocked 07/07/14 00:53
Vodafone http://www.streetkid.org.uk blocked 07/07/14 00:53
EE http://www.standrewschurch.co.uk blocked 07/07/14 00:59
O2 http://www.standrewschurch.co.uk blocked 07/07/14 00:59
Sky http://www.standrewschurch.co.uk blocked 07/07/14 00:59
Vodafone http://www.standrewschurch.co.uk blocked 07/07/14 00:59
EE http://www.ssyat.org blocked 07/07/14 01:01
O2 http://www.ssyat.org blocked 07/07/14 01:01
Sky http://www.ssyat.org blocked 07/07/14 01:01
Vodafone http://www.ssyat.org blocked 07/07/14 01:01
EE http://www.sspr.org.uk blocked 07/07/14 01:01
O2 http://www.sspr.org.uk blocked 07/07/14 01:01
Sky http://www.sspr.org.uk blocked 07/07/14 01:01
Vodafone http://www.sspr.org.uk blocked 07/07/14 01:01
TalkTalk http://www.scottishwideraccess.org blocked 07/07/14 01:11
TalkTalk http://www.scottishwideraccess.org blocked 07/07/14 01:12
BT http://www.scottishmarriagecare.org blocked 07/07/14 01:13
TalkTalk http://www.say-women.co.uk blocked 07/07/14 01:17
TalkTalk http://www.rwh1697.co.uk blocked 07/07/14 01:19
Vodafone http://www.postcodeculturetrust.org.uk blocked 07/07/14 01:32
EE http://www.poetryassociationofscotland.org.uk blocked 07/07/14 01:33
O2 http://www.poetryassociationofscotland.org.uk blocked 07/07/14 01:33
Sky http://www.poetryassociationofscotland.org.uk blocked 07/07/14 01:33
Vodafone http://www.poetryassociationofscotland.org.uk blocked 07/07/14 01:33
EE http://www.pitsligo-castle.org.uk blocked 07/07/14 01:34
O2 http://www.pitsligo-castle.org.uk blocked 07/07/14 01:34
Sky http://www.pitsligo-castle.org.uk blocked 07/07/14 01:34
Vodafone http://www.pitsligo-castle.org.uk blocked 07/07/14 01:34
EE http://www.owlandpussycatcentre.co.uk blocked 07/07/14 01:39
O2 http://www.owlandpussycatcentre.co.uk blocked 07/07/14 01:39
Sky http://www.owlandpussycatcentre.co.uk blocked 07/07/14 01:39
TalkTalk http://www.owlandpussycatcentre.co.uk blocked 07/07/14 01:39
Vodafone http://www.owlandpussycatcentre.co.uk blocked 07/07/14 01:39
Sky http://www.nrcofs.org blocked 07/07/14 01:43
TalkTalk http://www.nrcofs.org blocked 07/07/14 01:43
TalkTalk http://www.nostringsattachedscotland.org blocked 07/07/14 01:43
BT http://www.nilegroveplaygroup.co.uk blocked 07/07/14 01:45
TalkTalk http://www.ngfdg.co.uk blocked 07/07/14 01:45
BT http://www.new-laigh-kirk.org.uk blocked 07/07/14 01:46
VirginMedia http://www.new-laigh-kirk.org.uk blocked 07/07/14 01:46
BT http://www.mjasha.org.uk blocked 07/07/14 01:53
EE http://www.minginish-hall.info blocked 07/07/14 01:53
O2 http://www.minginish-hall.info blocked 07/07/14 01:53
Sky http://www.minginish-hall.info blocked 07/07/14 01:53
Vodafone http://www.minginish-hall.info blocked 07/07/14 01:53
EE http://www.mbeeds.org blocked 07/07/14 01:56
O2 http://www.mbeeds.org blocked 07/07/14 01:56
Sky http://www.mbeeds.org blocked 07/07/14 01:56
Vodafone http://www.mbeeds.org blocked 07/07/14 01:56
BT http://www.livingstonfreechurch.co.uk blocked 07/07/14 02:02
Vodafone http://www.leap-ethiopia.com blocked 07/07/14 02:05
BT http://www.kennetpans.info blocked 07/07/14 02:11
TalkTalk http://www.kennetpans.info blocked 07/07/14 02:11
BT http://www.kdbefriending.org.uk blocked 07/07/14 02:12
EE http://www.idaos.org.uk blocked 07/07/14 02:18
O2 http://www.idaos.org.uk blocked 07/07/14 02:19
Sky http://www.idaos.org.uk blocked 07/07/14 02:18
Vodafone http://www.idaos.org.uk blocked 07/07/14 02:18
BT http://www.ibd.org.uk blocked 07/07/14 02:18
TalkTalk http://www.ibd.org.uk blocked 07/07/14 02:18
BT http://www.holytownparishchurch.org.uk blocked 07/07/14 02:22
VirginMedia http://www.holytownparishchurch.org.uk blocked 07/07/14 02:22
BT http://www.highlandrail.com blocked 07/07/14 02:23
TalkTalk http://www.hawicksaxhornband.com blocked 07/07/14 02:25
Sky http://www.hamiltonoperatic.org.uk blocked 07/07/14 02:26
Vodafone http://www.hamiltonoperatic.org.uk blocked 07/07/14 02:26
BT http://www.glasgowheritage.org.uk blocked 07/07/14 02:32
VirginMedia http://www.glasgowheritage.org.uk blocked 07/07/14 02:32
BT http://www.fork.org.uk blocked 07/07/14 02:41
O2 http://www.fork.org.uk blocked 07/07/14 02:41
Sky http://www.fork.org.uk blocked 07/07/14 02:41
Vodafone http://www.fork.org.uk blocked 07/07/14 02:41
BT http://www.fingaskcastle.com/follies blocked 07/07/14 02:43
BT http://www.ethicalvoiceforanimals.org.uk blocked 07/07/14 02:48
TalkTalk http://www.ellonevents.com blocked 07/07/14 02:50
TalkTalk http://www.drinklink.org blocked 07/07/14 02:59
TalkTalk http://www.dmdpb.com blocked 07/07/14 03:00
BT http://www.daca.org.uk blocked 07/07/14 03:04
EE http://www.d-v-8.org.uk blocked 07/07/14 03:16
O2 http://www.d-v-8.org.uk blocked 07/07/14 03:04
Sky http://www.d-v-8.org.uk blocked 07/07/14 03:04
Vodafone http://www.d-v-8.org.uk blocked 07/07/14 03:04
Vodafone http://www.crosslynx.org.uk blocked 07/07/14 03:06
BT http://www.coira.net blocked 07/07/14 03:11
VirginMedia http://www.coira.net blocked 07/07/14 03:11
BT http://www.claychurch.org.uk blocked 07/07/14 03:13
BT http://www.cclothian.org.uk blocked 07/07/14 03:19
BT http://www.bible4now.info blocked 07/07/14 03:32
BT http://www.ashscotland.org.uk blocked 07/07/14 03:38
Vodafone http://www.ashscotland.org.uk blocked 07/07/14 03:38
EE http://www.arrantat.co.uk blocked 07/07/14 04:18
O2 http://www.arrantat.co.uk blocked 07/07/14 03:40
Sky http://www.arrantat.co.uk blocked 07/07/14 03:39
Vodafone http://www.arrantat.co.uk blocked 07/07/14 03:39
BT http://www.argyllcouplecounselling.org blocked 07/07/14 03:40
Sky http://www.argyllcouplecounselling.org blocked 07/07/14 03:40
Vodafone http://www.argyllcouplecounselling.org blocked 07/07/14 03:40
TalkTalk http://www.alcoholsupport.co.uk blocked 07/07/14 03:44
BT http://www.agescotland.org.uk blocked 07/07/14 03:45
BT http://www.actioninmind.org.uk blocked 07/07/14 03:47
Vodafone http://www.aberdourstdrostans.org.uk blocked 07/07/14 03:48

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July 15, 2014 | Jim Killock

#DRIP heroes, round one


July 14, 2014 | Pam Cowburn

The DRIP myth list

Here are some of the arguments that the Government is using to justify passing emergency data retention legislation - and the reasons why the Data Retention and Investigatory Powers Bill (DRIP) should not be rushed through Parliament. We are urging our supporters to call the House of Commons on 0207 219 3000 and demand that they vote against this legislation.

1. “This is an emergency”

The CJEU ruling was delivered on 8 April, 2014. The government has had 3 months to address the court’s findings. We believe that it is the threat of legal action by Open Rights Group and other organisations that has prompted this ‘emergency’ legislation -  not the threat of terrorism or criminal activity — but any legal action would be unlikely to produce any result for at least seven months. The government should not mislead us about the urgency of this legislation. Given its significance and the threat to our civil liberties, It should not be passed without proper parliamentary scrutiny.

Background: After the CJEU ruling, Open Rights Group and other organisations contacted the Home Office to ask them if they would be asking internet service providers to stop retaining data. In May, the Home Office responded by saying that ISPs should continue to retain data. Last month, over 1,500 ORG supporters wrote to their ISPs asking them to stop keeping their data. They responded by saying that they were acting under the instructions of the Home Office.

2. “This is not an extension of powers, it’s restoring the status quo”

The Prime Minister said, “we are not introducing new powers or capabilities” but in fact DRIP does not just deal with Regulations that were made illegal by the CJEU ruling. Clauses 3 to 5 of the Bill make amendments to the Regulation of Investigatory Powers Act (RIPA). DRIP extends the government's surveillance powers in two ways:

  • It extends the territorial scope of RIPA - this means that the government can issue interception warrants for communications data to companies outside of the UK.

  • It extends the definition of “telecommunications service” within RIPA. This will include webmail services such as Gmail. What isn’t clear is what other kinds of internet services are included.

3. “It’s the only way we can catch criminals”

We agree that the targeted retention of communications data can help the police to tackle serious crimes, such as terrorism and child abuse. However, the CJEU ruling outlined a low threshold for deciding to retain data. For example, if a serious crime is committed, data could be retained for a particular geographical region to support a criminal investigation. This means that the police could still retain data for specific investigations, rather than the blanket surveillance of all citizens.

The CJEU ruling was clear that blanket data retention interfered with our right to privacy and our right to a private family life. Other European countries, including Austria, Belgium, Bulgaria, Germany, Greece, Romania and Sweden, have rejected it. These countries continue to tackle serious crime without undermining their citizens’ civil liberties through blanket data retention.

4. “There is a sunset clause”

The Bill will expire on 31 December 2016. The government claims that this will ‘strengthen oversight and transparency’ but that date is two and a half years away. We believe that this date needs to be brought forward to 31 December 2014 and this can be amended or repealed very easily. If legislation is to be rushed through without debate, an earlier expiry date of 31 December 2014 would allow for public scrutiny over the next six months. This is a reasonable request even for those MPs who believe that this is an emergency situation.

5. “The Bill includes concessions that take into account the CJEU ruling”

DRIP ignores the main part of the CJEU ruling - that blanket data retention severely interferes with the fundamental rights to respect for private life and to the protection of personal data. The government has claimed that other aspects of the Bill will strengthen oversight and transparency. For example, they claim it will restrict the number of public bodies that can request communications data. Yet this concession does not appear in DRIP or the secondary legislation that will implement it. There has been no acknowledgment of the legal requirement to preserve UK citizens’ right to privacy.  

Call the House of Commons on 0207 219 3000 and ask your MP to vote against this legislation.

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July 10, 2014 | Ruth Coustick-Deal

"Emergency" Data Retention: What I told my MP

Today we launched a campaign to ask MPs to stop the 'emergency' Data Retention legislation.

The European Court of Justice ruled in April that blanket data retention, which the government requires of ISPs, is illegal and ignores the fundamental rights to privacy and data protection. However, rather than take the time to debate and redraft the law, they are pushing through a new Bill in record time: released today and put before Parliament on Monday.

It's incredibly disappointing to see the UK Government so determined to ignore a ruling on human rights. Since we have had a year of revelations as to how GCHQ ignore the right to privacy I find it particularly galling that David Cameron wants to push forward with legislation like this, directly in the face of our human rights and the international outrage over Internet snooping.

That's why I wrote to my MP about this issue as soon as our action went live. I've kept my email pretty brief and emphasised the way this Bill is circumventing the democratic process. I know not every MP thinks the same as me on digital issues like the Snowden leaks or the importance of anonymity. But I believe they should all care about doing their job as Members of Parliament, to scrutinise and debate and question.

If you'd like to write to your MP with a letter like mine and ask them to stop this rushed legislation, here are the 4 key points I've used: 

  1. Emergency legislation should only be for a genuine national emergency. We are not currently in an emergency so Parliament should take its time.
  2. The only threat is that of legal action as the Government wishes to continue with blanket data retention which the CJEU recently ruled incompatible with human rights.
  3. The UK has an obligation to comply with the European Convention on Human Rights, which we have signed onto and which we should uphold as an example internationally.
  4. It doesn't matter whether you agree or not with the contents of the Bill. This hasn't undergone the proper scrutiny and all MPs should care about being given the opportunity to have their say.

Here's my letter:

Dear Anne Main MP,
I'm writing to you about the emergency data retention legislation the Government have announced today.

I know that you are a Conservative MP and may well agree, or be whipped into agreeing with the contents of this Bill. However, I would urge you to push back on the timeframe on this legislation. Emergency legislation should be when we are under a genuine viable threat.

As I see it, the only threat is the Government failing to comply with a European Court of Justice ruling that existing Data Retention laws are incompatible with human rights - and facing a lawsuit as a consequence. There are big questions being discussed about the balance of privacy, security, data laws, and the purposes and needs of our police and security services. I would welcome these being aired in public, through a proper process of debates and scrutiny in which you and all MPs are involved. Please stand back against this legislation being rushed through in a day.

Thank you very much.

Sincerely,
Ruth Coustick-Deal

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July 10, 2014 | Jim Killock

Updates on “emergency” data retention law

We'll add updates to this blog as the day goes on.

Email your MP - No Emergency!

You can email your MP about this. This is not the time for emergency legislation!

 

We wait to see precisely what this Data Retention Bill contains, but there are some principles at stake:

Emergency legislation should deal with emergencies: there is no emergency

While the government is on thin ice pretending that data retention laws still exist, they have persuaded ISPs to carry on with it. They have stated to the courts that they believe the data retention regulations are still in force. Until a court says otherwise, everyone will carry on as they are. Court dates and decisions are likely to be six months away. In any case, rushing through legislation that is extremely controversial should never be done in a day. There is undoubtedly time for a discussion.

Legislation must comply with human rights judgements

What exactly is the point of human rights judgements if even the Liberal Democrats are prepared to ignore them? The CJEU have outlined very clearly what needs to happen before governments compel data to be retained. They say you cannot do it on a blanket basis, and someone independent, such as a regulator or a judge, must supervise police access. These fundamental points are missing from the emergency laws.

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July 07, 2014 | Jim Killock

Theresa May is attempting to mislead the public

Government spin that data retention laws need to be revised to deal with terrorism, as reported by the Guardian on Saturday, is a simple attempt to mislead the public.

The real reason they need to legislate on data retention is that they are asking ISPs to operate illegally by retaining data, since the CJEU struck the Data Retention Directive down.

The government knows they are at high risk of legal action from ORG, Privacy International, Liberty and others, and of that legal action succeeding. ORG wrote to the government to ask them to stop trying to enforce EU data retention laws, as they had been invalidated. Thousands of ORG supporters wrote to ISPs to ask them to stop retaining their data illegally. One way or another, this law is likely to be struck down, and the government knows it.

ISPs have obeyed the government’s instructions to continue to retain data, which is in itself quite dubious. It is courts that decide what the law is, not governments. Parliament legislates, and governments must obey the law. The government does not decide what the law is.

Theresa May has long made it clear that she wants to extend data retention to cover mobile phone records, that are currently not kept because of the complexities of administering “Network Address Translation” caused by using single IP addresses for many mobile phone users. Currently data retention applies to phone records, customer data, IP addresses and email logs at your broadband ISP.

But now all retention too must abide by the CJEU judgement, which has clearly delineated the limits to data retention under human rights law. They have said that it must:

  • provide exceptions for people whose communications must be confidential for legal reasons

  • restrict retention to data that is related to a threat to public security and in particular restrict retention to a particular time period, geographical area and / or suspects or persons whose data would contribute to the prevention or prosecution of crime

  • restrict access to defined, sufficiently serious crimes

  • limit access to that which is strictly necessary

  • empower an independent administrative or judicial body to make decisions about access to the data on the basis of need

  • distinguish between the usefulness of different kinds of data and relate retention periods to that question

  • keep retention periods as low as possible, i.e. to periods that are ‘strictly necessary'

  • ensure the data is kept securely

  • ensure destruction of the data when it is no longer needed

  • ensure the data is kept within the EU 

Will any new UK data retention law, drafted and published this week meet these criteria? It doesn’t seem likely, and if not, then Parliament must be given time to consider it in line with the demands of the judgement. This paragraph, in particular, needs the attention of our legislators:

Moreover, whilst seeking to contribute to the fight against serious crime, Directive 2006/24 does not require any relationship between the data whose retention is provided for and a threat to public security and, in particular, it is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to beinvolved, in one way or another, in a serious crime, or (ii) to persons who could,for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.

That is a clear call to draw a line and stop blanket data retention. As the court says in their press statement, it is a ”serious interference with fundamental rights of citizens to privacy”. Any new law needs to scale back, not increase, the UK's data retention laws.

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