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High Court Rules UK Telecoms and Internet Data Retention Act Unlawful

Friday, July 17th, 2015 (10:15 am) - Score 2,248
internet privacy uk

The Government’s plan to introduce tougher Internet snooping laws has suffered a setback after the High Court ruled that key parts of the temporary Data Retention and Investigatory Powers Act (DRIP), which is due to be replaced by the end of 2016 with a more controversial and extensive law, are unlawful.

The DRIP Act was rushed into law last year as a replacement for the Regulation of Investigatory Powers Act 2000, which was declared “invalid” after the European Court of Justice ruled (here and here) that it breached the “fundamental right to respect for private life and the fundamental right to the protection of personal data” (i.e. Charter of Fundamental Rights of the EU).

At this point the Government hurriedly re-drafted RIPA and converted it into the DRIP Act, which was effectively the same legislation with a few tweaks (here). Meanwhile work is continuing to develop the new Investigatory Powers Bill (here), which threatens to expand upon DRIP by forcing broadband ISPs to log a much bigger slice of everybody’s online activity (note: this does not include the actual content of your communications).

But not everybody was happy with the Government’s attempt to shirk the ECJ’s original ruling, with both David Davis MP (Conservative) and Tom Watson MP (Labour) choosing to join forces with the civil rights group Liberty in order to fight DRIP through a Judicial Review at the High Court.

However the Government’s plans have today stumbled after the High Court agreed that EU law requires an independent approval to access communications data, which must now be put in place by March 2016. This is in respect to sections 1 and 2 of the DRIP Act (both focus on the powers needed for retaining and accessing communications data).

The High Court Findings for Sections 1 and 2 (DRIPA):

* Both fail to provide clear and precise rules to ensure data is only accessed for the purpose of preventing and detecting serious offences, or for conducting criminal prosecutions relating to such offences.

* Access to data is not authorised by a court or independent body, whose decision could limit access to and use of the data to what is strictly necessary. The ruling observes that: “The need for that approval to be by a judge or official wholly independent of the force or body making the application should not, provided the person responsible is properly trained or experienced, be particularly cumbersome.”

Liberty hopes that the ruling will foster a new law that would forgo the mass Internet / phone surveillance approach and instead take a more targeted direction, which would demand prior judicial authorisation and a requirement that data is only retained as part of investigations into serious crime or to prevent death and injury.

David Davis, Conservative MP for Haltemprice and Howden, said:

The court has recognised what was clear to many last year, that the Government’s hasty and ill-thought through legislation is fatally flawed. They will now have to rewrite the law to require judicial or independent approval before accessing innocent people’s data, reflecting the new consensus amongst experts in the Anderson and RUSI reports.

This change will improve both privacy and security, as whilst the Government gave Parliament one day to consider its law, the court has given almost nine months.”

Tom Watson, Labour MP for West Bromwich East, added:

The Government was warned that rushing through important security legislation would end up with botched law. Now the High Court has said they must come back to Parliament and do it properly. The Government gave MPs one day to discuss the legislation which was wrongly represented as respectful of people’s right to privacy: it has until March 2016 to make sure that the law is re-written.

There must be independent oversight of the Government’s data-collection powers and there must be a proper framework and rules on the use and access of citizens’ communications data.”

The victory apparently marks the first time that MPs have successfully judicially reviewed the Government, although it’s unlikely to completely halt the drive towards tougher rules. But what it may do is limit their scope to more serious offences and improve oversight. In the meantime the Government are planning to appeal.

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Mark Jackson
By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he is also the founder of ISPreview since 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on Twitter, , Facebook and Linkedin.
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1 Response
  1. Steve Jones

    Rather that this being just the government the court has ruled against, it’s actually a ruling against parliament and primary legislation. (There are been many occasions on which actions by the executive have been found to be illegal). This is unprecedented in UK history and is a position like that in countries which have constitutional courts which effectively rule on the constitutionality of laws. It’s directly in the face of the principle of Parliamentary sovereignty.

    So interesting from a constitutional front.

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