BBC, the European Court of Justice has made a ruling that could seriously impact the powers in the Investigatory Powers Act to collect data on everyone in the UK.
The IP Act has provisions, much like the Data Retention and Investigatory Powers Act (DRIPA) it replaces, and the Data Retention Directive (DRD) before it, to retain data about use of communications systems.
The IP Act actually pushes this much further - previously telcos/ISPs could have been asked to retain certain data they processed (e.g. telephone itemised billing records) but could not be required to actually generate data they were not processing. The IP Act allows much more and it has been made clear that the government wish to log usage of the Internet in some detail - down to the level of recording every web site everyone has accessed. This is far more than just retention of data, and would apply to everyone, even those not suspected of any crime.
The good news is that the ruling from the CJEU is that this sort of mass retention of data is not consistent with our basic human rights and EU law. These apply regardless of whether we leave the EU or not.
The BBC article is not ideal in its analysis, and Open Rights Group have a much better analysis (here).
Retention is an invasion of privacy
The key point of argument here is that the UK Government considered that indiscriminate retaining of data should be allowed as long as access to that data was restricted and controlled in a suitable way. However, that is not the case. The court ruled that indiscriminate retaining of data was simply not acceptable. You have to be much more specific about whose data is to be collected to target suspects in a crime.
Only to be used for serious crime
The court also looked at the issue of controls over access to the retained data. Again, this did not go well as the access has to be restricted to only serious crime. The IP Act tries to even redefine serious crime to include things that are not serious, so that will have to change too.
Proper independent authorisation of requests for data
On top of that - the access to the retained data should be approved by an independent body, such as a court, and not simply by the current system of a Designated Senior Officer. This could finally mean we see proper court warrants for access to retained data.
No more secrecy
As I have long said, the secrecy around data retention and collection of data is not really acceptable. The ruling says subjects of access should be told about it once there is no longer a risk of prejudice to the investigation.
We can still catch criminals
None of this stops wire taps (or the Internet equivalent) on suspects in serious crime, set up and accessed with the proper controls. All it stops is the indiscriminate logging of everything we all do on the Internet - and that is a good thing - we are all meant to be innocent until proven guilty, after all.
Read the ORG article for a lot more useful insight in to this ruling.
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