Earlier this week, the Court of Justice of the European Union delivered its judgement on the legality of the UK & Swedish data retention and surveillance laws. They confirmed their ruling from 2015 that general monitoring is illegal, that retention must be specific and is only allowed to combat serious crimes, that access to surveillance records must be authorised by independent authorities and that EU data subjects must be have access to legal remediation if their rights to privacy are breached. The Guardian report on it here, the Independent here ,the Register here and even the Daily Mash comments here. The UK’s Investigatory Powers Act also gives the government the right to mandate backdoors in UK operated communications products; these powers may also fall foul of the prohibition on general monitoring and the need for independent review. While the ruling is specific to the UK’s DRIPA law, which has now been replaced by the Investigatory Powers Act, it poses a clear challenge to the legality of the new Law.
The IP Act legalises general monitoring and permits access to the record systems created to 27 agencies with insufficient independent oversight. According to Europe’s top judges, including one Briton this contravenes the UK & other EU member state citizen’s right to privacy, one of the fundamental rights in the EU’s charter of rights. These rights are also now the subject of an EU Regulation (the GDPR) and thus UK law; it’ll be interesting to see how the UK courts deal with any court cases seeking review of the information warrants and if nothing else it’ll disrupt the ability to present surveillance information in court.
The Open Rights Group, the UK’s campaigning digital liberty organisation explains its views on the ruling here on their blog, talking about general monitoring, police access to these records and independent supervision.
Some argue that the Conservative Government will use the so-called interference of the CJEU in the UK’s national security measures as an increased argument to leave the EU. Certainly their hostility to the Court is at the centre of the Conservative Parliamentary leaderships hostility to the EU. In this case we should be grateful for the advice of Judges who are the children of democratic revolutions against Europe’s post war fascist and Stalinist governments; these lawyers truly understand what an omnipresent secret police is, and where it leads.
The Tories, the securocrats and we should remember though that this is one area where sanctions can (and almost certainly will) be levied. The previous case “Schrems vs, Facebook” made it clear that the right to transfer data out of the European Union (& the EEA) is dependent on the destination having an “adequate” data protection legal regime which requires a number of features but includes the need to adequately protect personal data, and to allow people access to legal remediation against illegal breaches; secret and unsupervised law enforcement access to private data is considered by the CJEU to be prima facie proof of inadequacy. It’s the law enforcement access, in the UK, 27 agencies, to the disproportionately broad secret records that jeopardise the UK’s ability to trade with the EU.
On its passage through the Lords, the campaigning opponents opened a Government site petition against the Investigatory Powers act that obtained the 100,000 signatures required to be considered for debate in days, and now stands at over 205,000 signatures. The House of Commons business committee has rejected the call for a Commons debate on the grounds that they’ve only just finished debating the law. This court ruling is a serious impediment, not only will other member states of the EU object to these laws, UK based companies may decide that it’s in their best interests not to comply with a potentially illegal law, they’ve done it before.
Sign the petition, write to your MP and your service provider.
Dianne Abbott, Labour’s new Shadow Home Secretary states in the Independent that the Law’s passage was a mistake and needs to be repealed/amended. Finally!
For more by me see, http://blog.davelevy.info/tag/ipbill/
Image Credit: Cédric Puisney CC 2009 BY 2.0 sourced from wikipedia
There are hyperlinks and tool tips in the original at http://wp.me/p7KCT7-18j