In December 2016, the EU’s highest court ruled that governments keeping emails and electronic communications on a “general an indiscriminate” basis was illegal. In doing so, it pushed the UK’s controversial surveillance laws back into the country’s highest court.
Now, in what will be seen as a fresh blow for the government’s so-called Snooper’s Charter, the UK’s Court of Appeal has ruled previous surveillance law was illegal. After years of legal wrangling, the court said the Data Retention and Investigatory Powers Act 2014 (Dripa) didn’t put restrictions on the access to reams of data collected about people in the UK.
Dripa was “inconsistent with EU law” as it allowed access to retained data that wasn’t “restricted solely to fighting serious crime”. The court’s judgement (Google Drive download) also found the law allowed police and public bodies to authorise their own access to data collected about people in the UK, without oversight.
The case, which started in 2014, was brought by Labour’s deputy leader Tom Watson and the government’s Brexit chief David Davis. When the case started, Davis was a backbench Conservative MP and he has since removed himself from the proceedings. The challenge from Watson (and initially Davis) against government surveillance has been supported by the campaign groups Liberty, Privacy International and the Open Rights Group.
The decision by the Court of Appeal means it is likely the government’s current Investigatory Powers Act (IP Act) will have be to amended.
“The government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to a crime, are protected by a system of independent approval for access to communications data,” Watson said in a statement.
In 2015, the UK’s High Court ruled that Dripa’s email and communication weren’t compatible with EU law. To challenge the decision the government appealed the case to the European Court of Justice (ECJ).
“With respect to retention, the retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained,” the ECJ said in its ruling. The ECJ also remarked that collecting emails and messages would make people “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,” the ECJ added. As a result of the judgment the case came back to the UK for judges to rule upon how the EU decision could be applied to national legislation.
In November last year, the government responded to the European Court of Justice’s ruling saying it was granting more concessions for privacy. Included in these new safeguards were the creation of an Office for Communications Data Authorisation which should handle communications data requests, stopping communications data being used for anything but serious crimes and not allowing the collection of communications data for issues of public health or tax collection.
The UK’s most recent update to its surveillance laws came around the same time as the 2016 ECJ judgment. The controversial IP Act started to be implemented in January 2017. The law was dubbed as the biggest reform of surveillance powers in a decade by Theresa May, who was home secretary during the Act’s progress through parliament.
However, the IP Act was widely criticised by security and privacy experts for the range of powers it allowed police and security services. The law allows for communications companies – ISPs, mobile firms, and others – to store internet connection records for 12 months. This data includes details of every website every person in the UK has visited.
The law also allows for bulk data sets to be collected by security agencies, gives them increased powers to hack into devices and allow for real-time surveillance. Since the law was enacted it has faced a number of new legal challenges.
This week, “DRIP” has dominated the British news cycle. The drearily-named piece of legislation has alternately been described as absolutely essential for the security of the nation, and a dangerous expansion of the surveillance state. Here’s what you need to know.
DRIP is the Data Retention and Investigatory Powers Act. It was introduced after the European Court of Justice (ECJ) ruled Britain’s 2009 Data Retention Directive invalid—a legal decision that has been echoed elsewhere across Europe, with 7 countries so far ruling blanket retention unconstitutional. DRIP would restore much of the surveillance powers stripped by the ECJ decision.
What’s the big deal?
Well, there’s two issues at stake. First, there’s the incredibly rapid timetable in which it was passed. Since its introduction just last week, the “emergency” bill has been rushed through Parliament in a single day, with very little time for debate. After passing the Lords Wednesday night, it looks likely to be given “royal assent”—and so passed into law—by the end of the week.
Update: As of Thursday, July 17, DRIP has now received “royal assent” and become an official Act of Parliament, enshrining it in law.
Secondly, there’s the content of the bill itself. Whilst its proponents maintain that it merely enshrines in law current practices, its critics argue that it in fact grants the government sweeping new powers, many of which were proposed—and rejected—in the so-called “Snooper’s Charter” earlier this year. This is despite Deputy Prime Minister Nick Clegg claiming in June that the issue would not be revived before the next general election. “That’s just not something going to happen while I’m in government,” he said.
But isn’t it an emergency?
That this is an “emergency” is the argument given by DRIP’s proponents to justify the undue haste of its passing—but it does raise questions as to why the government waited three full months after the European ruling before making a move. Former shadow secretary David Davis, a high-profile Conservative Member of Parliament (MP) and one of the bill’s few critics in the Commons has said his “understanding is [that] there was an argument inside government between the two halves of the coalition and that argument has gone on for three months, so what the coalition cannot decide in three months this house has to decide in one day.”
“This seems to me entirely improper because the role of parliament, we have three roles. One is to scrutinise legislation, one is to prevent unintended consequences and one is to defend the freedom and liberty of our constituents. This undermines all three and we should oppose this motion.”
While Davis is decidedly anti-DRIP, his explanation for why the bill was rushed through Parliament is the best anyone has at the moment.
So, who’s in favor of DRIP?
Most MP’s. All three main parties—the Conservatives and Lib Dems that comprise the coalition government, along with Labour in opposition—have given the bill their backing. After MP’s voted overwhelmingly in favor of the accelerated timetable, the bill itself passed the Commons by a vote of 449 to 33.
Conservative Home Secretary Theresa May stressed the urgency of DRIP, saying that “if we delay, we face the appalling prospect [that] police operations will go dark, that trails will go cold, that terrorists plots will go undetected.”
In opposition, the shadow home secretary Yvette Cooper (Labour) also supported the bill—though she argued that it must constitute the beginning of a broader debate on surveillance.
“This is not the way that this kind of legislation should be done. Let’s be clear, the last-minute nature of it does undermine trust in the government’s intentions but also in the vital work the police and agencies need to do,” Cooper said. “But I have no doubt this legislation is needed and that we cannot delay it until the autumn.”
So, it’s all good then?
Not quite. That the bill has overwhelming support in the Commons doesn’t mean it’s without its critics.
The U.N. High Commissioner for Human Rights Navi Pillay has criticizedthe decision to rush the bill through Parliament, saying that “it’s difficult to see how the U.K. can now justify rushing through wide-reaching emergency legislation, which may not fully address the concerns raised by the court, at time when there are proceedings ongoing by the U.K.’s own investigative powers tribunal on these very issues.” (Those “proceedings” she refers to are ongoing legal action brought against the U.K. government by a consortium of human rights organizations including Privacy International and Amnesty International.)
Apart from the concerns over timetabling, a worry is that, rather than just enshrining in law existing practices, the bill will in fact allow for a radical expansion of surveillance. A group of senior academics have saidthat changes in the law allow for a “serious expansion of surveillance.”
These changes allegedly include authorising the U.K. government to “compel persons or companies outside the United Kingdom to execute an interception or warrant relating to conduct outside of the U.K.” They also claim that “DRIP attempts to extend the territorial reach of the British interception powers, expanding the U.K.’s ability to mandate the interception of communications content across the globe.”
“It introduces powers that are not only completely novel in the United Kingdom, they are the first of their kind globally,” the academics said.
Peers in the British upper chamber, the House of Lords, have also raised concerns that clause 1(3) of the bill potentially allows the Home Secretary to “expand her surveillance powers without the need for further votes in the Commons,” reports Politics.co.uk, and that it is “not clear” what would “prevent the secretary of state using clause 1(3) to enhance data retention powers.”
Whistleblower Edward Snowden has also condemned DRIP, saying that it “defies belief,” and questioned the apparent urgency of the bill. “I mean we don’t have bombs falling,” he told the Guardian in an interview. “We don’t have U-boats in the harbour.”
Within the Commons, one key opponent is Labour MP Tom Watson, who was just defeated in his attempts to put a one-year expiration clause in the bill by 454 votes to 56.
“Parliament has been insulted,” Watson said. “[This is] democratic banditry resonant of a rogue state.”
The only Green MP in Parliament, Caroline Lucas, has said that “it is outrageous that we have been granted one day in which to debate and scrutinise a bill of such significance … this is a huge power grab under false pretences.”