European Court of Justice to hear David Davis and Tom Watson’s challenge to DRIPA surveillance law
11 April 2016
The Court of Justice of the European Union (CJEU) will tomorrow (Tuesday 12 April 2016) consider critical questions around the lawfulness of state powers to require the bulk retention of people’s communications data, to which police and other authorities can authorise their own access.
The Court will hear a legal challenge brought by MPs David Davis and Tom Watson, represented by Liberty, as well as a case referred by the courts in Sweden, Tele2 Sverige v Post- och telestyrelsen.*
In a case that could have profound repercussions for the Government’s new Investigatory Powers Bill, judges will be asked to clarify whether blanket retention of and self-authorised access to communications data – records of emails, calls, texts and web activity – by police and other authorities breach people’s fundamental right to privacy and protection of personal data.
Mr Davis and Mr Watson launched a legal challenge to the Data Retention and Investigatory Powers Act (DRIPA) – the Government’s current surveillance law – in 2014.
In July 2015, the High Court found key parts of it breached fundamental rights because they do not include rules to ensure data is only accessed to help prevent and detect serious offences, and because access is not authorised by a court or independent body.
The Government appealed, and Court of Appeal judges sought clarification from the CJEU in December.
James Welch, Liberty’s Legal Director, said: “Liberty strongly supports the use of surveillance in fighting crime, but only if it’s targeted. The Government’s approach of sweeping up and storing everybody’s data with no effective safeguards is excessive.
“This case could stop the fatally flawed Investigatory Powers Bill in its tracks and mark a sea change in the fight for an effective, targeted system of surveillance that keeps us safe and protects our rights.”
Potential impact on the new Investigatory Powers Bill
DRIPA allows the Home Secretary to force communications companies to keep communications data for 12 months. It catches the records of everybody in the UK – including the confidential or privileged correspondence of MPs, journalists, lawyers and doctors.
This data is subject to an extremely lax access regime and can be obtained by hundreds of public bodies – many of which can authorise access themselves for an expansive range of reasons that have nothing to do with the investigation of serious crime.
The Investigatory Powers Bill – currently being rushed through Parliament – not only seeks to re-legislate for DRIPA, but goes much further. It would dramatically expand the mass data-gathering powers challenged in this case, with no attempt to remedy the lack of safeguards raised by the High Court.
The Bill would force service providers to generate and retain every person’s internet connection records (ICRs) – details of every website visited, communication software, desktop widget and application used, system update downloaded and device used to connect to the web.
It also seeks to put several other bulk powers – including hacking, interception and acquisition of vast databases containing sensitive information of millions of innocent people - on a statutory footing.
If the CJEU finds the scheme of bulk retention and self-authorised access breaches human rights law, whole sections of the Investigatory Powers Bill will be called into question. Such a ruling would make it extremely unlikely that proposals for other even more intrusive bulk measures in the Bill would comply.
Less safe, less free
Liberty has campaigned for an overhaul of UK surveillance laws for years, but believes the Investigatory Powers Bill will put people’s online security and personal privacy at risk.
In publishing the Bill, the Government has ignored the conclusions of technology experts, communications service providers and three cross-party parliamentary committees that its proposals are unclear, unworkable and potentially unlawful, and that the case for the speculative mass surveillance powers it contains has not been made.
Liberty believes a dynamic, targeted system – with surveillance conducted for tightly defined reasons – would more effectively aid the investigation and prevention of serious crime, while respecting British people’s fundamental right to privacy and online security.
CONTACT: Liberty Press Office on 020 7378 3656 or 07973 831128
NOTES TO EDITORS:
* On 4 May 2015, the Stockholm Administrative Court of Appeal referred the case of Tele2 Sverige AB v Post- och Telestyrelsen to the CJEU (CJEU case no C-203/15) asking the Court whether blanket data retention without any distinctions, limitations or exceptions is incompatible with the E-Privacy Directive taking account of Articles 7, 8, 15(1) of the Charter of Fundamental Rights. This case will be heard alongside Liberty’s in the ECJ tomorrow.
- Liberty’s summary of the Investigatory Powers Bill can be read here.
- The full High Court judgment can be read here.
- On 8 April 2014 the Court of Justice of the European Union (CJEU), in a case brought by Irish NGO Digital Rights Ireland (CJEU case no. C-293/12), held that Directive 2006/24/EC – which obliged EU member states to require communications service providers to retain communications data for between 6 and 24 months – violated Articles 7 and 8 or the EU Charter of Fundamental Rights. It struck the Directive down. This meant UK regulations giving effect to the Directive themselves became invalid.