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Thursday, December 22, 2016

Snoopers' Charter suffers major setback

The ruling by the European Court of Justice yesterday, that “General and indiscriminate retention” of emails and electronic communications by governments is illegal, has thrown the future of the UK Government's 'Snoopers Charter' into serious doubt.

As the Guardian reports, the ECJ determined that only targeted interception of traffic and location data in order to combat serious crime, including terrorism, is justified. It means that the UK’s new Investigatory Powers Act may have to be revisited:

The finding came in response to a legal challenge initially brought by the Brexit secretary, David Davis, when he was a backbench MP, and Tom Watson, Labour’s deputy leader, over the legality of GCHQ’s bulk interception of call records and online messages.

Davis and Watson, who were supported by Liberty, the Law Society, the Open Rights Group and Privacy International, had already won a high court victory on the issue, but the government appealed and the case was referred by appeal judges to the ECJ. The case will now return to the court of appeal to be resolved in terms of UK legislation.

The aim of going to Luxembourg was to clarify EU law on surveillance. The two MPs had argued successfully in the domestic courts that the Data Retention and Investigatory Powers Act (Dripa) 2014 was illegal. Dripa has since been replaced by the Investigatory Powers Act, which comes into force at the end of this month.

At issue was whether there are EU standards on data retention that need to be respected by member states in domestic legislation. The result, though immediately significant, could prove academic once the UK has withdrawn from the EU and the ECJ no longer has jurisdiction over the UK.

In a summary of the ruling, the court said electronic communications allow “very precise conclusions to be drawn concerning the private lives of persons whose data has been retained”.

It added: “The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious.

“The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.

“Legislation prescribing a general and indiscriminate retention of data … exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society.” Prior authorisation by a court or independent body to access retained data is required for each official request, the ECJ said.

What is intriguing about this case is that it was brought by Labour's Deputy Leader, despite his party voting for the Snooper's Charter, and it was taken to a European Court by the current Minister for Brexit, albeit before he entered the government. Irony truly is dead.

The Liberal Democrats have consistently opposed this legislation precisely for the reasons set out by the ECJ, because the British government is treating the entire nation as suspects by ignoring safeguards on retaining and accessing personal communications data. Not only is the legislation illiberal but it is not even the most effective way to use data interception to tackle terrorism.

We can only hope that the Court of Appeal now upholds the ruling and forces the Government to rethink their approach.
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