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Big Brother Will Still Be Watching You – Parliament Rushes Through Data Protection Legislation

Phone Tapping

Big Brother Will Still Be Watching You – Parliament Rushes Through Data Protection Legislation

Over the last week you may have heard or read various references to Snoopers’ Charter, emergency legislation, protection from serious crime and terrorism and data protection on the news or in your favourite newspaper.  These phrases can sound rather sinister when taken out of context, but before you start thinking that you have entered some kind of Orwellian parallel universe, let me explain to you what all the fuss is about and what it means for you and your privacy.

What Exactly is the Emergency?

At present, under an EU directive, communication companies and internet service providers are required to keep records of their customer’s activity for a period of 12 months.  The UK government compensates these companies to the tune of £65 million to store this data.  The information gathered can then be used by authorities to assist inquiries into serious crimes and terrorist activity.

Now before you start panicking about the moan you had about your boss the other day over your mobile phone, let me put your mind at ease.  Authorities can only examine the date, time and people involved in the communication, not the contents of it.  This type of data has been used in over 95% of the serious criminal cases handled by the Crown Prosecution Service, including the grooming of young girls in Rochdale and the murder of school girls Holly Wells and Jessica Chapman.

In April this year, the Data Retention Directive was deemed unlawful by the European Court of Justice (ECJ).  This came about after courts in Ireland and Austria asked the ECJ to rule on the validity of the directive as being against the rights enshrined in the Charter of Fundamental Rights of the EU.  The two rights the Irish and Austrian courts were particularly concerned with were:

i.            The right to respect private life and;

ii.            The right to protection of personal data.

The ECJ ruled that the directive was invalid.  It reasoned that allowing authorities access to the time, location and frequency of peoples’ communication allows them to derive information about the “habits of a person’s everyday life”.  The learned judges went on to say,

“by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data.”

The ECJ also found that the directive did not go far enough to prevent the risk of abuse and unlawful use of the data.

The UK law surrounding this area was based on EU law, so the invalidation of the EU directive meant the UK legislation could no longer be enforced within our courts.

The Impact

Understandably this decision has created a lot of confusion around the law surrounding data protection.  David Cameron announced that this uncertainty would result in companies starting to delete the data they had on file within as little as three weeks, putting the UK population’s safety at risk.

The Government’s Response

Mr Cameron has garnered support from both Labour and the Liberal Democrats in order to rush through emergency legislation this week.  The Data Retention and Investigation Powers Bill will be debated today (Tuesday) and passed on Thursday.  This will provide a ‘stop-gap’ to ensure that communication companies and internet service providers retain their customer records for 12 months.

The main points that the Bill covers are as follows:

  • The legislation effectively safeguards the data protection laws surrounding the storing of data for 12 months which is already in place.
  • The Bill reinforces the right for certain authorities to perform a “legal intercept”, whereby after obtaining a warrant, officers can listen into communications and calls.
  • The legislation includes what is known as a “sunset clause”, meaning it will expire at the end of 2016, giving all parties the chance to debate subsequent legislation fully.
  • For the first time, emails are included as part of the data that companies must keep in storage.
  • The Bill will make clear that provisions involving protection of the ‘economic wellbeing of the country only applies to a specific security threat; for example terrorists plotting to disable the stock exchange via a computer virus.
  • The powers contained in the Bill will also apply to communication providers and internet service providers outside the UK.
  • Fewer public bodies will be entitled to access the data (at present approximately 600 public bodies can access the information).

Phone Tapping in the UKWhy the Controversy?

The fact that the government has had notice of the ECJ ruling since April this year and is only now, in July choosing to deal with its consequences by rushing through emergency legislation has naturally raised a few liberal eyebrows.  Even the Law Society has issued a note of caution, given that the “emergency legislation will go against a court judgment on human rights ”.

The biggest concern is that this rushed legislation will open a back door for the so called ‘Snoopers’ Charter’ to be revived.  Officially known as the Draft Communications Data Bill, it would require internet service providers and communication companies to maintain records of every single internet user’s browsing history (including social media use) for 12 months.  Criticised for being “incredibly intrusive” by one MP, not to mention incredibly expensive, the Liberal Democrats effectively sent this Bill to the legislative graveyard and has stated unequivocally that it will not support any attempts to revive it.

So What Does This Mean For You?

Well, in a word, nothing.  When the Bill is passed this week all that will happen is that the existing powers that are already in force will simply continue.  Yes, certain authorities (and remember, the number of these will be reduced by the Bill) will be able to access details of your communications, but they have been able to do so for many years.  Big Brother will not be watching you any more than he already is and has been for some time.

What this Bill does provide is a 16 month opportunity for the parties to agree to new legislation which will take out much of the confusion present in the current law surrounding surveillance.  If this is something you feel strongly about, you now have an opportunity to write to your MP with your views and submissions.

Do you have strong views on the rushing through of this particular Bill?  If so we would be delighted to hear your thoughts, drop us a line in the comments section below.

Saracens Solicitors



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