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The DRIP effect on civil liberties

Emergency surveillance legislation passes through Commons and Lords despite criticism from lawyers, academics, politicians and civil rights groups

18 July 2014

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The proposed emergency surveillance legislation, Data Retention and Investigatory Powers Bill (DRIP), has passed through the House of Commons on its third reading in just one day with an overwhelming majority of 416 MPs voting in favour leaving 56 opposed.

The government's rush to push the bill through parliament was widely criticised in the House of Lords. Yet despite this, the bill looks set to become law after peers waved it through without a vote.

The controversial bill, brought in the wake of a decision of the European Court of Justice in April, requires internet and phone companies to store the communications data generated by phone calls, email, texts and internet use for 12 months and make it accessible to police and security services.

The bill would also force non-UK companies such as Microsoft, Yahoo and Facebook to retain information on the web activities of its UK based users.

Home secretary Theresa May said the bill was designed in the interests of national security following warnings from the US of suspected terrorist attacks in the west.

However, Labour MP Tom Watson criticised the move to rush the bill through parliament in one day, describing it as "democratic banditry resonant of a rogue state".

Criticism has come from outside parliament too. In an open letter to the Commons, 15 technology law specialists, who include Professor Ian Brown of the Oxford Internet Institute, Professor Lilian Edwards of the University of Strathclyde, Dr Subhajit Basu of the University of Leeds and legal expert Julia Powles of Cambridge University, expressed concerns over the bill's contents.

"The legislation goes far beyond simply authorising data retention in the UK," the letter stated. "In fact, DRIP attempts to extend the territorial reach of the British interception powers, expanding the UK's ability to mandate the interception of communications content across the globe. It introduces powers that are not only completely novel in the UK, they are some of the first of their kind globally."

Status quo

Shami Chakrabarti, director of civil liberties group Liberty, said: "Since the government unveiled its 'emergency' Data Retention and Investigatory Powers Bill late last week, our politicians have been falling over themselves to assure us that there's no cause for concern. Oh, this 'technical' new law? Don't worry, dear voters, it simply maintains the status quo. Just trust us. Move on.

"Well the status quo is bad enough - unlawful in fact - following a ruling from the Court of Justice in April, which held blanket data retention is a violation of our basic rights. With blatant disregard for the court's ruling, DRIP recreates sweeping surveillance powers that will affect every man, woman and child in this country, allowing the government to command blanket retention of the entire population's communications data for 12 months."

While Mike Rispoli, communications manager of Privacy International, commented: "Examples from recent history show the democratic process being used and abused in times of 'emergency', which result in bad laws or laws with unintended consequences.

"With the scale and reach of the security services together with the rapid evolution of technology, caution and thought is urgently needed when introducing legislation that affects the very core of our fundamental freedoms."

Solicitor and journalist David Allen Green added: "Bad law imposes illiberal burdens, and bad law may not be enforceable or may not have the intended effect. By forcing through this legislation without proper consultation and scrutiny, it is the government which is acting irresponsibly."

The Law Society has also issued a warning that legislation affecting the privacy and freedoms of the individual should, whenever possible, be subject to full parliamentary scrutiny.

Andrew Caplen, the society's new president, said: "The government's review of the Regulation of Investigatory Powers Act is welcome. We have been calling for a review of RIPA and associated legislation for some years.

"However, we are concerned that introducing emergency legislation does nothing to enhance the rule of law or address the fact that we are increasingly becoming a 'surveillance society'. The history of emergency legislation is not exemplary, with laws being used for purposes for which they were not intended."

Caplen said that the government's announcement was particularly worrying given that the emergency legislation would go against a court judgment on human rights.

"There needs to be a public debate about how to strike the right balance between security, freedom and privacy. We need to simplify and clarify a complex and confusing legal framework and ensure that it protects human rights," he concluded.

The Law Society has called for a review of the legal and practical framework of surveillance in the UK, explicit legislative protection for legal professional privilege in legislation like RIPA, and the development of a future legislative framework that reflects public consensus as well as the expert views of relevant technologists, jurists, academics and civil liberties groups.


‘Debate couched in the language of fear’

David Rundle is an associate at Wilmer Cutler Pickering Hale and Dorr

“DRIP has not been warmly received. Criticisms have been directed both at its contents and the legislative process, which entailed a cursory debate couched in the familiar language of fear. There seems little reason why the need for the legislation should not have been foreseen immediately after 8 April 2014, when the European Court of Justice ruled that the existing data retention directive was invalid. That judgment nullified the UK’s data retention regulations which had implemented the directive.

“As well as seeking to rectify this position and thereby, in the government’s words, ‘preserve the status quo’, DRIP also extends the scope of the Regulation of Investigatory Powers Act 2000 (RIPA). These amendments are not a reaction to the ECJ’s judgment and hence should arguably not have been incorporated into an ‘emergency’ bill. Irrespective, therefore, of how warranted these amendments are, allegations that the government has acted cynically seem in part justified.

“But what of the bill’s substance? RIPA has been extended in two ways. First, the power, both to intercept communications content and to acquire communications data, has been given extraterritorial effect. The bill will enable the state to serve an interception warrant on a foreign-based company, in respect of communications that are sent and/or received outside the UK. The second amendment extends the meaning of ‘telecommunications service’ to catch web-based communications such as webmail.

“While a wholesale political debate over surveillance powers is long overdue, the justification for these amendments stems from a recognition that telecommunications has experienced rapid and seismic development over the last few years. If one accepts the potential necessity of these powers, attention needs to refocus on their regulation and the importance of independent scrutiny.

“Turning to the core of the bill – the power to order retention of data – the ECJ acknowledged that retention satisfies a public objective, namely the fight against serious crime. The directive was invalidated, however, on account of the wide-ranging interference with citizens’ fundamental rights, not being ‘strictly necessary’.

“The government’s claim that the bill responds to those concerns, and contains appropriate safeguards, is questionable. Two reasons are particularly worth mentioning. First, the bill would allow for blanket orders for the retention of communications data, contrary to the ECJ’s express concern. The requirement for ministers to consider the order’s necessity and proportionality is of little comfort, despite the government’s claims.

“Second, access to retained data is not dependent on prior review by a court or independent administrative body, except in the case of local authorities. Accordingly, the bill would appear to be incompatible with the ECJ’s recent judgment.

“One hopes that the future independent reviewer of these powers, whose appointment is mandated under the bill, will have appropriate regard to the ECJ. The need for our security services and police to obtain telecommunications data should not be questioned. But, as the ECJ’s judgment emphasises, such powers must be subject to greater independent scrutiny if the public is to have any faith that their use will remain proportionate and proper.”

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