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UK ‘snoopers charter’ claimed to break EU law

Commission's retention of data framework itself is unlawful, says legal opinion

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The data retention regimes in operation or preparation in at least ten European states are unlawful, and breach the European Convention on Human Rights, according to a legal opinion released today. According to the opinion, comissioned by Privacy International from law firm Covington & Burling, the European Commission's framework directive on the retention of communications data is in itself unlawful, which means that any state in the process of actually implementing it may have to think again.

In the UK, this could add another chapter to the tortuous and - so far - unfortunate history of the 'snooper's charter, which is currently before Parliament as a series of Statutory Instruments. Although a little watered down from its previous version, this still requires widespread retention of data as regards web sites visited, email addresses, phone calls and mobile phone location data, and still gives numerous public authorities access to that data.

According to the opinion, it's precisely this scattergun approach that breaches the Convention on Human Rights:

"Article 8 of the European Convention on Human Rights (ECHR) guarantees every individual the right to respect for his or her private life, subject only to narrow exceptions where government action is imperative. The Framework Decision and national laws similar to it would interfere with this right, by requiring the accumulation of large amounts of information bearing on individuals' private activities. This interference with the privacy rights of every user of European-based communications services cannot be justified under the limited exceptions envisaged by Article 8 because it is neither consistent with the rule of law nor necessary in a democratic society.

"The indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behaviour to avoid unwanted intrusions. Moreover, the data retention requirement would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society."

Privacy International is to pursue test cases in at least two EU countries where mandatory data retention is already in place, and has also lodged a complaint with the UK Information Commissioner, alleging that the government's regulations and voluntary code on retention breach at least three core principles of the Data Protection Act. Blanket retention of data, it argues, breaches the principle of proportionality, and flouts the specificity principle, while "the existence of a voluntary code for communications providers takes no account of the consent principle." PI has also lodged an Open Government request for disclosure of the government's legal advice relating to the regulations currently before Parliament.

PI director Simon Davies commented that the government was forcing "unwilling companies to be complicit in an unprecedented and disproportionate surveillance regime", and called on communications providers to "support their customers' rights by ignoring the government's proposals." Which would be fun - any takers?

Davies told The Register that the first test case is likely to be brought in Denmark. The second has yet to be determined, but as legislation is well advanced in several other cases, this may be an influential factor.

There will be a debate on the legal opinion at the LSE on 22nd October, details and registration here. ®

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