New surveillance bill faces criticism

Last Thursday, the Government published its draft Communications Data Bill which, it is fair to say, has been met with wide criticism.

The Bill, which was trailed in the Queen’s Speech earlier this year and has been dubbed a ‘snoopers’ charter’, grants additional powers to law enforcement agencies to access communications data, updating and extending the current powers already granted under the Regulation of Investigatory Powers Act (RIPA).

What does the Bill cover?
When John first blogged on this (back in April), we had little detail on what the proposed bill might say. But as anticipated, the scope of the draft Bill has been widely drawn. Too widely drawn perhaps. Should the Bill be made law, businesses that ‘transmit communications’ will be required to hold records of all communications transmitted for a 1 year period. This will include the likes of telephone providers and internet service providers, but also other businesses involved in enabling and transmitting communications such as social media networks and webmail email systems.

The data that they will be required to store will include email addresses, telephone numbers, and websites visited – the headline information about the communication – but it will not extend to the content of the communication, so the law does not require that the content of a specific web pages visited or the content of an email are stored (although taking the “postcard” analogy, this may be the practical effect). These data records can then be released to law enforcement agencies and certain other public bodies.

Privacy concerns
In Theresa May’s introduction to the Bill she states that the Bill “strikes the right balance between protecting the public and safeguarding civil liberties”. This hasn’t been the public’s perception.

Privacy campaigners, human rights groups and the general public have all expressed concern that the Bill is too far-reaching in scope and intrusiveness, and threatens an individual’s right to freedom. In fact even the privacy impact assessment that was released with the Bill highlighted the risks to personal privacy that the suggested level of surveillance would pose.

In particular, critics cite the lack of independent judicial scrutiny of the authorisation process for public authorities gaining access to communications data, with authorisations instead approved by a senior officer within the authority.

Data security is also a key concern. If communication businesses are required to collect this data then it must be secured (and subsequently destroyed) in such a way that it complies with the Data Protection Act. In a statement issued in response to the Bill by the ICO (the organisation responsible for regulating data protection compliance) it implied that it does not have adequate powers or resources to monitor this increase in data retention requirements.

Cost of surveillance
Aside from the privacy implications of the Bill, there is also a considerable financial cost attached to the new Bill.

As with the current arrangements under RIPA and Data Retention Regulations, the Government is to reimburse the cost incurred by communications companies in storing and providing access to communications data. This has been estimated to cost a minimum of £1.8 billion over 10 years. This figure can be best described as conservative.

It doesn’t take into account inflation (both financial and in the volume of communications), the potential for an inevitable increase in the use of electronic communications nor the costs incurred in bolstering the ICO’s investigative and enforcement capabilities.

Recognising the need to strike the right balance between protecting the public and safeguarding civil liberties, the Government has submitted a draft bill for pre-legislative scrutiny by both Houses of Parliament, with a view to introducing the final bill to Parliament later this year. It will be interesting to see how much this Bill changes as it is debated in the public and parliamentary arenas before it becomes law.

Leigh Kirktpatrick

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