Terrorism bill ‘biggest threat to competition since RIP’ – ISPA

The UK ISP Association (ISPA) has raised several strong reservations about new laws introduced in the new Anti-Terrorism, Crime and Security Bill, created in response to the 11 September attacks and currently going through the Lords.

When the measures were first announced - just two days after the terrorist attacks in America - the ISPA supported them. At the same time though, Nicholas Lansman, Secretary-General for the ISPA, told us: "We are behind this Bill... but, as ever, the devil is in the detail."

Having reviewed the legislation the ISPA feels it is "heavy handed" and "the biggest threat to international competition since the RIP Bill of 1999". It has several main concerns.

These are: details of the legal protection that CSPs (Communications Services Providers) will receive; inclusion of clauses relating to proportionality and equity with a consequent right to appeal; and details of the scheme by which CSPs will recover their costs for complying with the proposed code of practice.

As with many recent bills regarding the Internet and digital technology, it is the detail - or rather the lack of detail - in the draft legislation which worries concerned parties.

CSP Legal Protection

The ISPA reckons the "voluntary" code of practice associated with the bill (there remains some concern that this is just a notional title and the police will be able to demand the same information if denied) does not supply CSPs with legal protection from prosecution under the Data Protection Act.

Currently, it is illegal for companies to retain data longer than three months and only then for billing. But increasing the amount of information CSPs will need to hold, they are being put into a difficult legal area, not to mention the extra burden associated with people requesting data held on them - a right under the Data Protection Act.

The solution? A clause in which CSPs are ruled exempt from prosecution under the Data Protection Act when complying with the new bill.

Proportionality and reasonableness

In the current wording, the government has "extremely broad and discretionary powers" to apply the new legislation without having to submit to a test of proportionality i.e. they can theoretically get away with murder.

This, the ISPA feels, could restrain CSPs since the boundaries can shift as and when the Secretary of State decides.

Equity

There is nothing in the bill which says all CSPs have to be treated equally. This could see some companies landed with huge bills complying with new laws while others face both a lower real and proportionate cost. The consequence? Reduced competition in the market.

Right of Appeal

The ISPA wants to see a right of appeal for CSPs so they can apply for a legal review of whether the action demanded of them is deemed proportional. This is the case with RIP and is an important safeguard.

Cost recovery

More details and information needed over how and how much will be made available to CSPs to cover the cost of complying with the new laws. Without a clear approach, companies could see themselves involved in a bureaucratic quagmire. Also, without any reference to the amount of money to be made available to CSPs, the cost of compliance could be ruinous and certainly uncompetitive.

The House of Lords are discussing the bill today and aim is to introduce clauses in the emergency legislation that will "make the UK more secure" but without "unnecessarily hindering the CSP community". ®

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