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UK ISP Internet Snooping Act in Trouble After CJEU Court Ruling

Wednesday, December 21st, 2016 (11:04 am) - Score 1,710

The Court of Justice of the European Union has struck a blow to the UK’s controversial Internet snooping Investigatory Powers Act 2016 by ruling that EU law does not allow “general and indiscriminate retention of traffic data and location data,” except for “targeted” use against “serious crime“.

Today’s ruling stems from a long running legal challenge, which began after the UK Government’s old Regulation of Investigatory Powers Act 2000 (RIPA) and similar laws in other EU member states, which enabled the security services to snoop on telecoms and Internet services, was effectively declared “invalid” by the European Court of Justice (here and here).

The court found that related laws breached the “fundamental right to respect for private life and the fundamental right to the protection of personal data“, among other things. The decision forced the UK to hastily introduce a temporary Data Retention and Investigatory Powers Act (DRIP), which did little to overcome the original concerns and was similarly challenged (here) by civil rights group Liberty and two ministers – David Davis MP (Conservative) and Tom Watson MP (Labour).

Since then the DRIP Act has been replaced by the even more controversial IPAct (here), which among other things forces broadband ISPs into logging a bigger slice of your Internet activity, irrespective of whether or not you’re even suspected of a crime. The data can then be requested by a variety of security and non-security related groups, all without needing a full warrant.

However today’s CJEU ruling appears to confirm that such “general and indiscriminate retention of traffic data and location data” is NOT allowed under EU law, unless the data retention is both targeted (e.g. used against a specific individual or group of interest to the security services) and used in cases of “serious crime“. Individuals must also be notified if their data is accessed.

CJEU Statement (Joined Cases C-203/15 & C-698/15)

EU law precludes a general and indiscriminate retention of traffic data and location data, but it is open to Members States to make provision, as a preventive measure, for targeted retention of that data solely for the purpose of fighting serious crime, provided that such retention is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the chosen duration of retention, limited to what is strictly necessary.

Access of the national authorities to the retained data must be subject to conditions, including prior review by an independent authority and the data being retained within the EU

At present the Internet Connection Records (ICR) that the UK Government’s IPAct would appear to mandate do not appear to comply with today’s ruling, not least because the controversial data retention is anything but targeted against specific individuals or groups suspected of “serious crime“. On top of that the suspects do not have to be notified if their data is accessed.

Jim Killock, Executive Director of the Open Rights Group, said:

“The CJEU has sent a clear message to the UK Government: blanket surveillance of our communications is intrusive and unacceptable in a democracy.

The Government knew this judgment was coming but Theresa May was determined to push through her snoopers’ charter regardless. The Government must act quickly to re-write the IPA or be prepared to go to court again.”

A Spokesperson for the Home Office said:

“We are disappointed with the judgement from the European court of justice and will be considering its potential implications.

It will now be for the court of appeal to determine the case. The government will be putting forward robust arguments to the court of appeal about the strength of our existing regime for communications data retention and access.

Given the importance of communications data to preventing and detecting crime, we will ensure plans are in place so that the police and other public authorities can continue to acquire such data in a way that is consistent with EU law and our obligation to protect the public.”

The outcome could force the UK Government to return the law for further significant amendments, although we wouldn’t put it past them to find a way of twisting the wording and or delaying any related court judgements through appeal until the Brexit process completes.

However, depending upon the terms of any Brexit deal with the EU, the UK may still have to respect some of the related EU laws, so it might not be a simple case of waiting to escape before the full force of the IPAct can be introduced. On top of that the CJEU states that any data being retained must be kept within the EU, which adds another complication.

As a quick reminder, David Davis MP withdrew from the case after being appointed Minister for Brexit.

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By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on Twitter, , Facebook and Linkedin.
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14 Responses
  1. Doctor Colossus says:

    This is just one of the reasons why I am pro EU. Because some politicians in the UK still needs a leash…

    1. the-not-so-silent-and-hopefully-not-minority says:


    2. Bob2002 says:

      Variations on a theme – both the UK and the EU have “nanny state” tendencies. You can see it here and you can also see it in EU moves to censor social media by removing “hate speech” and “fake news” – something often in the eye of the beholder.

  2. Ethel Prunehat says:

    We need to get the electoral college to dissent and vote against brexit, otherwise what’s the point of the electoral college? Whoops, wrong thread…

    1. cyclope says:

      No what we need is a different government in office May is a traitor to the British people and puppet/shil to the establishment elite and soros

      The EU trying to block this act which should of never seen daylight doesn’t let them off the hook for state funded terrorism just look at Germany Merkel has the blood of the dead victims on her hands as do the establishment elites who funded this invasion of the EU

  3. Concerned Internetter says:

    This was one of the reasons why I was so opposed to the IPB. They said it was there to clarify and put on firm ground the intelligence agencies’ powers that were previously hidden in obscure legislation being creatively read. They knew it would be banned straight away.

    1. Apolloa says:

      Don’t worry, everything we do is recorded in some sense, the government hasn’t got the money to pay endless people spying on the public willy nilly. Only when they have suspicion. The British intelligence services are world class and they do stop a lot of terrorist acts in this country.
      More power to them I say if we stay safer. We all are used to cameras everywhere…

  4. Ignition says:

    Bloody EU, protecting our right to privacy, pushing back on our government wanting to spy on us indiscriminately.

    1. Steve Jones says:

      It’s should surely be up to local democracies to make decisions like this. The CJEU is also not where human rights are guaranteed. That’s the ECHR (which is not an EU institution).

    2. Doctor Colossus says:

      Steve, I don’t know about you, but if “local democracy” covers having a new legislation snuck in under the radar and fast tracked through the system like this, I am happy to have it overruled.

  5. Chris says:

    Hurrah, party time. Feck the UK communist manifesto. Of course they are still spying and I am not dropping my guard but it does throw a spanner in the works and makes it more difficult to get data and less easy to abuse by odd bodies.

    By the way, I have just bought and set up a PC Engines APU2 firewall running pfSense and handling my VPN and it is a fantastic piece of kit if a little hard to get configured correctly.


  6. Peter says:

    I would not worry – the EU is already on the next abomination
    All “vehicles” regardless of if they are only used on stored on private land will have to be insured.
    So that means all dodgems, ride on lawnmowers, golf carts, mobility scooters, farm vehicles….and of course it would put an end to the concept of SORN for a car.
    This comes out of the Vnuk v Zavarovalnica Trigla (Slovenia) trial ruling in the EU court of justice – resulting in an EU directive
    The EU really cannot stop can they dumping yet more sh*t onto the population……
    See article in the Times
    Still by the time this gets to law we will be out of the whole sodding thing and the EU can go fk itself.

  7. dragoneast says:

    It’s always been the same. If a state of affairs suits us – either because we’re not inconvenienced or we can manipulate it to our advantage – we complain bitterly about any attempt to change it; but once we suffer, we scream blue murder that things should be changed. (Just look at the eternal prevalence of drink driving, or driving without insurance and tax – SORN is so convenient to play the favourite British game game of “not being caught”- as well as speed limit infringements: the “I’ve never had an accident because of either”, mentality; and of course the popularity of illegal substances (and downloads): “I’m not harming anyone”, after all). And ever since nations started making treaties, there have been overlapping jurisdictions: we’ve know about that between the EHCR and the CJEC for nigh on half a century. Somehow our forbears managed what we can’t, apparently. To cope.

    I suppose something in the human brain must prevent us from seeing beyond the end of our nose, and cause us to play like the proverbial broken-down record. That hasn’t changed, either. Merry Christmas japes, everyone. Perhaps we could try to spare a thought for others, just occasionally, though.

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