Big Brother’s ‘Little Brother’ revision law also goes beyond what is strictly necessary from a human rights perspective, warns Committee

The UK Joint Human Rights Committee has expressed doubts as to whether proposed data retention powers in the Counter-Terrorism and Security (CTS) Bill satisfy the requirements of the CJEU’s 2014 Digital Rights Ireland (DRI) decision invalidating the Data Retention Directive (2006/24/EC). As previously described on this blog, the CJEU in that case held that indiscriminate (‘blanket’) retention of communications data is incompatible with the right to respect for privacy and the right to protection of personal data. Compatibility with those rights depends on the adequacy (proportionality) of all the relevant safeguards taken in the round. (For more information on the CTS Bill, see earlier posts here and here).

This announcement by the Committee – which was appointed by the House of Lords and the House of Commons to consider matters relating to human rights (excluding consideration of individual cases) – follows criticisms by private groups. They argue that, similar to existing surveillance powers under the controversial Data Retention and Investigatory Powers Act 2014 (DRIPA) (as well as the Data Retention Regulations 2014), the Bill’s additional requirements regarding communications data retention would also be incompatible with the rights to privacy and data protection under Articles 7 and 8 of the EU Charter of Fundamental Rights.

As a recap, under DRIPA data retention periods may vary subject to a maximum 12 months with different periods for different types of data as specified in a notice served by the Secretary of State. (Previously the retention period was a consistent 12 months from the date of the communication in question, as mandated under the now defunct Data Retention (EC Directive) Regulations 2009).

Section 2(1) of DRIPA provides definitions relating to the retention of ‘relevant communications data’ under that Act. Part 3 (clause 17) of the CTSB Bill, currently making its way through the legislative process, would expand this definition and thus the types of internet communications data public telecommunications operators must retain about their users upon receiving a retention notice. In particular, it would include an additional category of communications data – that is, data that will allow relevant authorities to link the unique attributes of a public Internet Protocol (IP) address to the individual (or the device) using it at any given time (‘IP resolution’).

In its report entitled ‘Legislative Scrutiny: Counter-Terrorism and Security Bill’, the Committee draws attention to both Houses specific consideration of the adequacy of safeguards in the Bill. It also mentions, more widely, reference to Parliament’s consideration of whether “the UK’s legal regime for the retention of communications data, viewed in the round” is sufficiently robust in light of privacy concerns.

To note, two specific concerns have been raised about the assumptions underpinning draft clause 17. First, the assertion by the Home Office that IP resolution is the ability to identify who in the real world was using an Internet IP address at a given point in time is contested on the basis that IP addresses are linked to devices not individuals. Second, it is argued that the stated necessity for amending DRIPA with additional powers so soon after its enactment is short-sighted, particularly as it will in any event be reviewed in the near future (in that context, the Bill is also being proposed as time-limited, being subject to the same sunset clause as DRIPA (that is, December 2016)).

More generally, Part 3 of the CTS Bill has been controversial because some see its provisions as pre-empting several reviews currently underway into the adequacy of the current UK legal framework governing surveillance and data retention powers, including the on-going inquiry into the fitness for purpose of the Regulation of Investigatory Powers Act 2000. Baroness Helena Kennedy QC, who is a member of the Joint Committee on Human Rights, said that in light of recent events in Paris, caution is required to ensure that governments do not write a “blank cheque” that could undermine civil liberties and human rights, in turn signifying a retreat from the Rule of Law.

For background, the 2014-15 Bill completed its fast-track progress through the House of Commons in early January, only six weeks after its publication in late November. The Bill had its Second Reading in the House of Lords on 13 January. The next step is the report stage of the House of Lords due on 2 February, which could indicate that enactment into law of the Bill will be rapid.

Alison Knight