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Activists say consultation on RIPA was 'secretive and short'

Home Office's changes to e-comm intercept law 'hard to find'

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Digital rights activists have criticised a Home Office consultation on the UK's main interception law that they say is shorter and more secret than it should be.

The consultation (10-page / 37KB PDF) is into proposed changes to the Regulation of Investigatory Powers Act (RIPA), the law which controls the interception of communications over electronic networks. The changes are designed to satisfy the demands of EU law.

Digital rights body the Open Rights Group (ORG) has said, though, that the consultation is shorter than normal and is not being run in a way that encourages public engagement.

The consultation was launched in early November and will finish on 17 December. Consultations more usually last for three months, according to the Government's Code of Practice on Consultation.

ORG also accuses the government of making the consultation document more difficult to find than in other cases.

"The consultation is not linked to from the Home Office consultation page, nor is it being publicised in any way," said ORG executive director Jim Killock in a statement. "The consultation is about a very serious matter. What rights should we have as citizens to take legal action against people who intercept our communications? Should criminal as well as civil charges be available? Who should investigate?"

"The Home Office’s consultation has been issued in breach of guidelines, with less than the 12 weeks that are expected," he said.

ORG is correct in saying that the consultation is not linked to from the Home Office's consultations page, but the Home Office said that the consultation was available to the public.

"The consultation is available on the Home Office website for anyone to view," it said in a statement. "There is an email or postal address for people to make contributions and we welcome all responses."

A Home Office statement to OUT-LAW.COM did not address ORG's criticism about the length of the consultation.

The consultation proposes two changes to RIPA to satisfy demands from the European Commission to bring the UK's law into line with the EU's in the aftermath of a BT trial of Phorm web usage-tracking technology.

That trial was conducted without users' consent and led to a European Commission investigation and a demand that UK law change to better protect users' privacy. The Commission said in September that, following warnings, it would take the UK to the European Court of Justice (ECJ) to force the legal changes.

The government has since published its proposals, which seek to address the commission's criticisms.

The Government plans to change the law's allowing of interception in cases where someone does not have explicit consent to intercept but does have "reasonable grounds for believing" that there is consent.

"The current provisions do not provide the required clarity. This is because 'reasonable grounds for believing' is open to different interpretations," said the consultation. "We intend to remove the ambiguity ... and thereby ensure that the provision is consistent with the definition of 'consent' supplied by ... the E-Privacy Directive and ... the Data Protection Directive.

"The Directives make clear that consent to interceptions of electronic communications by persons other than users must be 'freely given specific and informed'," it said. "The changes to [RIPA] will help to ensure that those who use the provisions in section 3(1) of RIPA to intercept communications, including internet service providers offering value added services, are clear that consent has been given by both parties so as to make the interception lawful."

The consultation's other proposal is a change to the law's application only to intentional interceptions.

"The existing offence is confined to cases involving intentional interception," it said. "However, the E-Privacy Directive requires a sanction to deter all unlawful interception of electronic communications by communications service providers, whether intentional or otherwise.

"We therefore need to introduce an additional sanction to address unintentional unlawful interception to satisfy the requirements of ... the E-Privacy Directive. We do not consider that the Directive imposes any requirement to extend the sanction beyond CSPs (communication service providers)."

The consultation also examined the sanctions for unlawful interceptions and considered a criminal sanction. Instead it proposes a civil penalty which would be administered by the existing Interception of Communications Commissioner (IoCC).

"The IoCC already works closely with CSPs in relation to his existing RIPA oversight functions and administering the new sanction would be a logical extension of his existing powers," it said.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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