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High Court Rules Part of UK ISP Internet Snooping Law is Unlawful

Friday, April 27th, 2018 (1:53 pm) - Score 9,434
internet uk spying and monitoring

The High Court of Justice (Queen’s Bench Division) has today ruled that a key part of the controversial 2016 Investigatory Powers Act, which would force broadband ISPs to log the internet activity of all their customers for up to 12 months, is unlawful and must be amended.

The IPAct contains a variety of measures, although one of the most hotly debated is a change that forces broadband ISPs and mobile operators to store comparatively detailed Internet Connection Records (e.g. details of all the websites / servers you’ve visited) about all their customers. This can then be supplied to a valid authority without a warrant (here) and occurs irrespective of whether or not you’re even suspected of a crime.

Needless to say, not everybody was happy with so much data being easily supplied, upon request, to dozens of public bodies (i.e. from local police to financial regulators). Similarly a 2016 ruling by the Court of Justice of the European Union (CJEU) had already warned that EU law does not allow “general and indiscriminate retention of traffic data and location data,” except for “targeted” use against “serious crime” (here).

In keeping with that Liberty, a human rights group, used the ruling as a basis for their £53K crowd-funded challenge against the temporary Data Retention and Investigatory Powers Act (DRIPA). The DRIP Act expired at the end of 2016, although much of it was later replicated as part of the wider follow-on IPAct.

Fast forward to January 2018 and the Court of Appeal ruled that DRIPA could be said to have breached the rights of British people because, among other things, it did not restrict access to this data, in the context of the investigation and prosecution of crime, to the purpose of fighting serious crime (here).

By this point the IPAct had already become law (replacing DRIPA) and the government had moved to soften it via a series of amendments (here). Nevertheless campaigners argued that the government’s proposed changes (e.g. they simply weakened the definition of “serious crime“) didn’t go far enough and as such they extended their challenge to the IPAct. Today they’ve won a key victory.

High Court of Justice Conclusion

For the reasons we have given this claim for judicial review succeeds in part, because Part 4 of the Investigatory Powers Act 2016 is incompatible with fundamental rights in EU law in that in the area of criminal justice:

(1) access to retained data is not limited to the purpose of combating “serious crime”; and

(2) access to retained data is not subject to prior review by a court or an independent administrative body.

We have concluded that the legislation must be amended within a reasonable time and that a reasonable time would be 1 November 2018, which is just over 6 months from the date of this judgment. We have also concluded that the appropriate remedy is a declaration to reflect our judgment.

Finally we would like to express our gratitude to all counsel and those instructing them for their assistance in this important case.

The Government must now change the law to require prior review by a court or independent administrative body and – in the context of crime-fighting – to only allow access to data for purposes of combating “serious crime.”

The Court did not rule on the legitimacy of the wide range of other non-crime purposes in the Act because the Government has already proposed legislation to remove them. It also does not stop the data collection itself due to only focusing upon access to the data.

Prior to today’s ruling, the Government had conceded Part 4 of the Investigatory Powers Act has several of the same flaws – but argued it should nonetheless be permitted to continue to apply it until April 2019. The High Court rejected this argument.

Javier Ruiz, Policy Director at Open Rights Group, said:

“The Government’s agreement to create a new body for independent authorisation to communications records is positive and welcome. That said, we believe the proposed thresholds for access to data are too low to comply with the requirements of the courts to restrict access to serious crime.

We are disappointed the court decided to narrowly focus on access to records but did not challenge the general and indiscriminate retention of communications data.”

Martha Spurrier, Director of Liberty, said:

“Police and security agencies need tools to tackle serious crime in the digital age – but creating the most intrusive surveillance regime of any democracy in the world is unlawful, unnecessary and ineffective.

Spying on everyone’s internet histories and email, text and phone records with no suspicion of serious criminal activity and no basic protections for our rights undermines everything that’s central to our democracy and freedom – our privacy, free press, free speech, protest rights, protections for journalists’ sources and whistleblowers, and legal and patient confidentiality. It also puts our most sensitive personal information at huge risk from criminal hackers and foreign spies.

The Court has done what the Government failed to do and protected these vital values.”

Liberty noted that today’s ruling focuses on just one part of a law that is “rotten to the core” and they now intend to challenge some of its other elements, such as those that allow the state to hack our computers, hoover up information about who we speak to, where we go, and what we look at online, and collect profiles of individual people even without any suspicion of criminality.

The above case was funded by donations from members of the public and today Liberty is launching the second phase of crowdfunding to ensure it can continue with the next stage of the legal challenge – ‘The People vs the Snoopers’ Charter: Part II‘ (target funding of £10,000).

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Mark Jackson
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.
Leave a Comment
5 Responses
  1. Avatar tonyp

    I’m convinced that bad legislation of the sort struck down by the High Court of Justice would possibly not have been passed by the legislature if Parliament had not removed Lords Judicial from the Upper House. Lords Temporal and possibly Lords Spirtual probably do not have the depth of legal purview to assess whether bills from ‘the other place’ would be unchallengable in court. Just my thoughts.

  2. Avatar Mike

    Just another reason to use a VPN…

  3. Avatar Tavish

    Taking this government to the high court and sue them for 6.2 mill is where i am going with this isp snooping is a violation of my rights and the rights of any uk citizen so lets go to court with this if virgin has no balls to fight it i have and virgin can come join the party as the coward in the background
    If you fiddle with a mans zipper your going to get punched we have more dirt on the tory party than virgin has go F**k yourself spam

    • Avatar London Muslims

      Lets go you creepy little Cowards we will fight you on the beaches we will fight you in the Streets we will fight you on the fact that you need knocked out.
      Right Out Of Office
      Teresa May Is a Dirty Woman with Dirty Ideas & Dirty Underwear The Unwashed has something strong alright, a strong smell of Pish Waffting from her Rear End
      The Tory On the Net sniffing your Aye(( s)) Pee (More Virgin Media Propoganda ) Is The Net Worth the Money Now When the Rodent Party is scratching the bottom of the barrel

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