The Bill has been brought in following a judgement of the European Court of Justice on 8 April 2011 which ruled invalid the EU Electronic communications — Directive 2006/24/EC which was brought into effect in UK law via The Data Retention (EC Directive) Regulations 2009.
The court judgement concluded that mass communications data retention provided for via the directive and regulations is not proportionate and is incompatible with Article 7 (Respect for private and family life) and Article 8 (protection of personal data) of the EU Charter of Fundamental Rights.
The judgment stated:
Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails 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.
What The Bill Could Have Looked Like
The Prime Minister, Home Secretary and Cambridge MP Julian Huppert have all claimed that all the Data Retention and Investigatory Powers Bill does is ensure the powers in place under the regulations continue to be available despite the court ruling.
All that would be needed to achieve that would be a very short Bill stating:
- The Data Retention (EC Directive) Regulations 2009 continue to have effect and are to be treated as if the provisions contained within them were introduced via primary legislation.
What we’ve got though is much more than that; through the guise of attempts to “clarify” the regulations.
A New Constitution
We need a new element to our “constitution” in the UK to deal with cases where courts rule elements of our law, or practices by public bodies, illegal.
In cases such as this with data retention, and in 2011 with a a court ruling on Police Bail court rulings have created uncertainty and confusion in relation to important operational parts of the UK state.
Our system of government needs to be changed to stop this happening.
We need procedures to make clear that what is happening in such cases is that the courts are referring matters which are unclear (for example where there is conflict between laws) back to elected representatives to review and take a decision on.
The existing laws should not be brought into question on immediately following a court ruling, but ought remain in-force for a short period to allow elected representatives to decide what to do.
My Views
- Cambridge MP Julian Huppert and others appear to have obtained concessions in return for their support for the Bill including the establishment of a Privacy and Civil Liberties Board; a review of interception and communications data powers ; and an an annual transparency report on the Government’s use of communications data and intercepts. Commitments on these points were included in the Home Secretary’s statement to MPs made on 10 July 2014 however they are not mentioned in the Bill. It would have been better to see details of these promised measures in the Bill.
- It is hard to have a debate on the scope of the state’s use of communications data and intercepts when the state isn’t being open and transparent about what what it is doing. Debates on the Communications Data Bill were carried out without the benefit of openness over, for example, the Tempora system. MPs were debating if to permit or not activity which it appears now was already happening.
- In terms of the importance of communications data the Home Secretary in her statement referred to the Soham murders. It doesn’t deal with the fact there were alternative sources of information, and that that case didn’t require retention of data for such a long period. The use of communications data in that case has been discussed by SpyBlog.
- Mass data collection by is increasingly becoming common in our society. It’s not just internet and phone providers who collect information on us; our banks and supermarkets do too as do various arms of the state, particularly via the increasing numbers of Automatic Number Plate Recognition cameras around the country. I think it’s right our elected representatives decide what information it is reasonable to retain, for how long, and how access to information collected is controlled.
- The questions of if information ought be recorded in the first place, how long it ought be retained for, and what safeguards ought be in place in relation to accessing it are all important and exist in relation to many datasets being collected about individuals.
- In terms of accessing, and searching for information I think at that stage warrants from a court ought be required. If information about where I’ve driven is collected by the state I think there ought be very strong safeguards preventing that information being accessed unless it is proportionate to do so. I would only support the collection of data in the first place if I could be assured it was kept securely and access was properly controlled. Retention should be for as short as practical a time.
What Communications Data is to be Retained
The Schedule to the The Data Retention (EC Directive) Regulations 2009 remains the relevant definition communications data under the of Data Retention and Investigatory Powers Bill.
It is in my view an archaic and unclear document.
One of the key issues is the impact of the subheadings within the document. Read without subheadings it has very different meaning to being read with them. The degree to which subheadings ought be used to help with interpretation of a Bill is often a matter of discussion. Its something MPs ought clarify.
The subheadings of Part 3 of the Schedule list the communications data which may be retained in relation to internet access as follows:
- Data necessary to trace and identify the source of a communication
- Data necessary to identify the destination of a communication
- Data necessary to identify the date, time and duration of a communication
- Data necessary to identify the type of communication
- Data necessary to identify users’ communication equipment (or what purports to be their equipment)
Data Retention and Investigatory Powers Bill
Clause One
The Secretary of State may by notice (a “retention notice”) require a public telecommunications operator to retain relevant communications data…
The Secretary of State may by notice (a “retention notice”) require a public telecommunications operator to retain relevant communications data…
In my view it is not made clear enough that this power does not extend to effectively requiring the collection of additional information, beyond which a communications provider would collect in the process of running their operations.
For example if an internet service provider fleetingly held information on websites, or webpages, visited, could a retention notice require such material to be retained for a much longer period?
Clause (1)(4)(g) states regulations may relate to:
the reimbursement by the Secretary of State (with or without conditions) of expenses incurred by public telecommunications operators in complying with relevant requirements or restrictions,
Whoever picks up the Bill this is potentially a dampener and drain on the UK economy.
Given the fraction of business which takes place online we should be doing all we can to make the UK an attractive place to base online businesses. Excessive, and costly, regulation in the UK could deter companies from setting up their operations here.
Clause 5 of the Bill which extends the definition of “telecommunications service” to include
“any case where a service consists in or includes facilitating the creation, management or storage of communications transmitted”
encompassing potentially any website which permits users to communicate with each other, or to publish information. This in particular could deter people from setting up such websites / services in the UK.
23 responses to “Data Retention and Investigatory Powers Bill”
Some of my tweets from the debate:
The way the Bill was introduced was astonishing.
On the 3rd of July Andrew Lansley MP said:
Clearly the Government knew they would be bringing the Data Retention and Investigatory Powers Bill in at that point; but they didn’t say so.
The way the Government behaved in terms of making public what was to be proposed was much worse than you would see at the smallest parish or town council. In local government a week’s notice is required of motions.
An MP complained at the start of the Data Retention and Investigatory Powers Bill debate that representatives had only a 45 minute slot in which to table amendments to the Bill.
Assuming the Lords wave this through as well (and who knows, they may not) I expect it to be challenged legally at EU level. The difference between the ruling and what the government propose is very noticeable. The ruling made it clear how specific any data to be retained should be. This just leaves it wide open and for no good reason.
Cambridge MP Julian Huppert’s speech on the timetable for rushing the Bill through in one day:
Clearly any claims by Julian Huppert to support and stand up for civil liberties and the proper conduct of a parliamentary documentary are bogus. The liberal democrats have lied again and supported legislation that is 100% at odds with their promises to the elctorate. We are all now the poorer.
The cross party support for this legislation is truly depressing.
documentary = democracy – suffering from malapropism
Following the passage of the Bill through the Commons additional details emerged:
I commented on if members of the new board would be given the same degree of access to material which the Independent Reviewer of Terrorism Legislation was given, so they can fulfill the same role:
The 2009 regulations stated:
The Data Retention and Investigatory Powers Bill states
It appears to me that the Secretary of State could, under the provisions in the new Bill, issue a notice covering say all those providing a public WiFi service; whereas under the regulations the Secretary of State would have had to identify, and write to, all such people individually.
The Data Retention and Investigatory Powers Bill gives the Secretary of State the power to decide if and when the 2009 Regulations will cease to have effect. This means that the additional provisions of the Bill, over the regulations, for example the requirement for retention notices to be “necessary and proportionate” may not be brought into effect and the existing regulations could continue to have effect in parallel with the powers in the new Bill.
A short summary of the provisions of the Data Retention and Investigatory Powers Bill after its fast-track consideration by MPs:
A more detailed summary of the provisions of the Data Retention and Investigatory Powers Bill after its consideration by MPs:
Cambridge MP Julian Huppert’s votes on the Data Retention and Investigatory Powers Bill:
Unfortunately, Julian Huppert is a scientist and not a lawyer. His predecessor — David Howarth — was a lawyer and he decried the Bill.
Julian got duped. 🙁
Cambridge’s previous MP David Howarth voted on 17 Mar 2009 at 21:42 against requiring public communications providers retain certain categories of communications data, which they generate or process, for a minimum period of 12 months.
David Howarth opposed the Data Retention (EC Directive) Regulations 2009 — Retention of Communications Data by Communications Providers when they were put before MPs.
The following MPs opposed the Bill at its Third Reading once the requirements for more frequent reports from the Interception of Communications Commissioner and the initiation of the review of the operation and regulation of investigatory powers were added, but did not oppose it at its second reading:
Those who opposed the key principles of the Bill at Second Reading but who did not oppose it following the amendments at Third reading were:
Julian Huppert put forward two amendments; neither of which were either accepted or pushed to a vote. One required proper record keeping by public bodies making requests for information and the other was intended to enable the publication of transparency reports by companies subject to a request for disclosure of encrypted information in a decrypted form.
Any way of finding when it goes to the Lords? (Or if it’s there already.)
The House of Lords are considering it now; on the 16th of July 2014.