Feeds

UK ‘snoopers charter’ claimed to break EU law

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

  • alert
  • submit to reddit

Internet Security Threat Report 2014

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. ®

Providing a secure and efficient Helpdesk

More from The Register

next story
Doctor Who's Flatline: Cool monsters, yes, but utterly limp subplots
We know what the Doctor does, stop going on about it already
Facebook, Apple: LADIES! Why not FREEZE your EGGS? It's on the company!
No biological clockwatching when you work in Silicon Valley
'Cowardly, venomous trolls' threatened with TWO-YEAR sentences for menacing posts
UK government: 'Taking a stand against a baying cyber-mob'
Happiness economics is bollocks. Oh, UK.gov just adopted it? Er ...
Opportunity doesn't knock; it costs us instead
Arab States make play for greater government control of the internet
Nerds told to get lost in last-minute power grab bid at UN meeting
Zippy one-liners, broken promises: Doctor Who on the Orient Express
Series finally hits stride, but Clara's U-turn is baffling
Don't bother telling people if you lose their data, say Euro bods
You read that right – with the proviso that it's encrypted
Apple SILENCES Bose, YANKS headphones from stores
The, er, Beats go on after noise-cancelling spat
prev story

Whitepapers

Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
Why cloud backup?
Combining the latest advancements in disk-based backup with secure, integrated, cloud technologies offer organizations fast and assured recovery of their critical enterprise data.
Win a year’s supply of chocolate
There is no techie angle to this competition so we're not going to pretend there is, but everyone loves chocolate so who cares.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?
Intelligent flash storage arrays
Tegile Intelligent Storage Arrays with IntelliFlash helps IT boost storage utilization and effciency while delivering unmatched storage savings and performance.