The tension between an individual’s right to privacy vs the collective right of the citizen body to security, have been ever present concerns in the social, political and legal sphere, particularly since 9/11. We might also characterise this tension as the obligation of the State to maintain the security of its citizens in a manner consistent with the rights expected in a democratic and pluralist society.
At the European level, the rights of the individual set out Data Privacy Directive 95/46/EC were offset by the State’s rights set out in the EU Data Retention Directive (2006/24/EC) (the “Old EU Retention Directive”). When that Directive was declared invalid as a result of the European Court of Justice decision of 8th April 2014 in a case brought by Digital Rights Ireland, it seemed that in the privacy vs security argument, the citizen’s right to privacy had (briefly at least) trumped the right to security…..but that was not to last for long.
The UK’s response was to introduce the UK Data Retention and Investigatory Powers Act 2014 (the “Stopgap Act”), described as “emergency legislation” to ensure that the death of the Old EU Retention Directive would be replaced by something which allowed the UK Government to carry on much as it had done before. This emergency legislation only made it through Parliament (amongst much wailing and gnashing of teeth from those concerned by the erosion of personal privacy) because it had a short shelf life, set to expire on 31st December 2016.
Since then, the Edward Snowden revelations have fuelled the arguments for the privacy lobby against mass indiscriminate surveillance. Terrorist atrocities around the globe have fuelled the counter arguments for (even) greater surveillance by the State and security organisations. Against the backdrop of these competing priorities, the Draft Investigatory Powers Bill was published by the UK Government on 4th November 2015.
The Parliamentary Joint Committee on the Draft Investigatory Powers Bill has now finished taking oral and written evidence on the Draft Bill and is preparing its report. It will be interesting to learn the views of that Committee, and whether any concerns raised or recommendations made will be in the sphere of national security and crime, or in the other areas where the Bill would have effect if it became law; including public health, financial regulation, and tax collection (another politically charged area of public concern).
The draft Investigatory Powers Bill currently replicates the requirement in the Stopgap Act for telecommunications operators to keep call data for twelve months (ie which number called which number on which day at what time and for how long), as well as Internet usage records (including whether Citizen A logged onto a site telling him/her how to poison a neighbor or blow up Tower Bridge…..but also just how many times Citizen A visited a supermarket website in a week). There are controls requiring warrants issued by a senior judge, but concerns that such a judge will be appointed by the Government of the day, and therefore inevitably tarred by the brush of political loyalty to masters other than Justice.
We will re-visit this important issue for communications providers one again as soon as the Joint Committee report is published.
In the meantime, if you are a communications provider, needing to understand your obligations under the Stop Gap Act and likely obligations going forward, contact firstname.lastname@example.org