Tag Archives: investigatory powers bill

How the UK passed the most invasive surveillance law in democratic history

IPBill image

In this guest post, Paul Bernal, Lecturer in Information Technology, Intellectual Property and Media Law at the University of East Anglia, reflects on the passage of the Investigatory Powers Bill. The legislation was recently passed in Parliament and given Royal Assent on 29 November 2016.

You might not have noticed thanks to world events, but the UK parliament recently approved the government’s so-called Snooper’s Charter and it has now become law. This nickname for the Investigatory Powers Bill is well earned. It represents a new level and nature of surveillance that goes beyond anything previously set out in law in a democratic society. It is not a modernisation of existing law, but something qualitatively different, something that intrudes upon every UK citizen’s life in a way that would even a decade ago have been inconceivable. Continue reading

Information Law and Policy Centre Annual Lecture and Workshop

An afternoon workshop and evening lecture to be given by leading information and data protection lawyer Rosemary Jay.

Restricted and Redacted: Where now for human rights and digital information control?

The Information Law and Policy Centre is delighted to announce that bookings are now open for its annual workshop and lecture on Wednesday 9th November 2016, this year supported by Bloomsbury’s Communications Law journal.

For both events, attendance will be free of charge thanks to the support of the IALS and our sponsor, although registration will be required as places are limited.

To register for the afternoon workshop please visit this Eventbrite page.

To register for the evening lecture please visit this Eventbrite Page.

Please note that for administrative purposes you will need to book separate tickets for the afternoon and evening events if you would like to come to both events.

AFTERNOON WORKSHOP/SEMINAR 
11am – 5pm (lunch and refreshments provided)

For the afternoon part of this event we have an excellent set of presentations lined up that consider information law and policy in the context of human rights. Speakers will offer an original perspective on the way in which information and data interact with legal rights and principles relating to free expression, privacy, data protection, reputation, copyright, national security, anti-discrimination and open justice.

We will be considering topics such as internet intermediary liability, investigatory and surveillance powers, media regulation, freedom of information, the EU General Data Protection Regulation, whistleblower protection, and ‘anti-extremism’ policy. The full programme will be released in October.

EVENING LECTURE BY ROSEMARY JAY, HUNTON & WILLIAMS
6pm-7.30pm (followed by reception)

The afternoon workshop will be followed by a keynote lecture to be given by Rosemary Jay, senior consultant attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice. Continue reading

Data Retention and the Automated Number Plate Recognition (ANPR) System: A Gap in the Oversight Regime

ANPR Intercept

The Advocate General’s Opinion in the recent Watson/Tele2 case re-emphasises the importance of considered justification for the collection and storage of personal data which has implications for a variety of data retention regimes. In this post, Lorna Woods, Professor of Internet Law at the University of Essex, considers the legal position of the system used to capture and store vehicle number plates in the UK.

The Data Retention Landscape

Since the annulment of the Data Retention Directive (Directive 2006/24/EC) (DPD) with Digital Rights Ireland (Case C-293/12), it has become clear that the mass retention of data – even for the prevention of terrorism and serious crime – needs to be carefully justified. Cases such as Schrems (Case C-362/14) and Watson/Tele2 (Case C-698/15) re-emphasise this approach. This trend can be seen also in the case law of the European Court of Human Rights, such as Zakharov v. Russia (47143/06) and Szabo v Hungary (11327/14 and 11613/14).

Not only must there be a legitimate public interest in the interference in individuals’ privacy and data protection rights, but that interference must be necessary and proportionate. Mechanisms must exist to ensure that surveillance systems are not abused: oversight and mechanisms for ex ante challenge must be provided.  It is this recognition that seems part of the motivation of the Investigatory Powers Bill currently before Parliament which deals – in the main – with interception and surveillance of electronic communications.

Yet this concern is not limited to electronic communications data, as the current case concerning passenger name records (PNR) data before the Court of Justice (Opinion 1/15) and other ECtHR judgments on biometric data retention (S and Marper v. UK (30562/04 and 30566/04)) illustrate.  Despite the response of the UK government to this jurisprudence, there seems to be one area which has been overlooked – at least with regard to a full oversight regime. That area is automated number plate recognition (ANPR) and the retention of the associated data. Continue reading

Brexit: “You don’t know what you’ve got till it’s gone”

Brexit IT law scrabble

In the following editorial, Professor Lilian Edwards considers the implications of the Brexit vote for information law and assesses the mood amongst the academic community in the aftermath of the EU Referendum.

The article was first published in Volume 13, Issue 2 of SCRIPT-ed: A Journal of Law, Technology and Society. Professor Edwards’ views do not represent those of the Information Law and Policy Centre or the Institute of Advanced Legal Studies. 

On 23 June 2016 a slim majority of UK voters decided we should leave the EU in one of the great political upsets of British political history. On 24 June, the next day, CREATe,[1] the RCUK copyright and business models centre which I have helped run since 2012, ran a one-day festival at the Royal Society of the Arts in London. This was designed to be a showcase and celebration of four years of working at the cutting edge of copyright and how it either helps or hinders the creative industries and arts. Hundreds of academics signed up to show and see, including the Director of CREATe, Martin Kretschmer of Glasgow University, from Germany by birth, and many others from all over Europe and beyond.

It was a classic international IT/intellectual property event: analysing laws made throughout the world to regulate globalised cultural markets, transnational data and product flows, disruptive technologies that disregard borders, and audiences as likely to listen to music made in Brazil via decentralised P2P networks, as watch Netflix series made in the US, or use smartphones made in Japan to watch Hindi pop videos on YouTube.

In the event, the CREATe Festival became more of a wake. Reportedly, experienced academics, who thought themselves hardened to trauma by years of bombardment from REF, TEF and NSS, were almost in tears at the first session. This writer, derelict of duty, was not there to corroborate, still staring like a rabbit in the headlights at the TV in a hotel bedroom in Docklands, where the dominant tech, business and financial workers were almost equally in shock.

So, Brexit. As the dust not so much settles as temporarily accumulates while we work out what on earth happens next, what are the implications for IT law and UK academe? Are they really as bad as they seemed that morning? Continue reading

Analysing the Advocate General’s opinion on data retention and EU law

7562831366_66f986c3ea_o (1)Last week, the Advocate General published an opinion on a case brought to the European Court of Justice concerning the compatibility of the UK and Sweden’s data retention laws with EU law.

In a detailed analysis, Lorna Woods, Professor of Internet Law at the University of Essex considers the potential implications of the opinion for national data retention regimes (including the UK’s Investigatory Powers Bill) and the legal tensions which arise from the Advocate General’s opinion. This post first appeared on Professor Steve Peer’s EU Law Analysis blog.     

The Advocate General’s opinion concerns two references from national courts which both arose in the aftermath of the invalidation of the Data Retention Directive (Directive 2006/24) in Digital Rights Ireland dealing with whether the retention of communications data en masse complies with EU law.

The question is important for the regimes that triggered the references, but in the background is a larger question: can mass retention of data ever be human rights compliant. While the Advocate General clearly states this is possible, things may not be that straightforward. Continue reading

What is the impact of the Brexit vote on the Investigatory Powers Bill?

IP bill 2 copyThe Investigatory Powers Bill is currently proceeding through parliament – its second reading in the House of Lords took place on Monday 27 June.

Readers may have missed reports on the Lords debate amidst financial losses, Labour Party resignations, the Conservative Party leadership race and, of course, England’s embarrassing exit from Euro 2016 (among other things).

Given the ongoing political uncertainty and distractions after the Brexit vote, Open Rights Group campaigners have called on the government to halt the passage of the Bill on the basis that it cannot be adequately scrutinised by parliamentarians, the media and the public.

The Open Rights Group suggests that the passage of the Bill could be affected by the political crisis – the Bill could be accelerated or delayed depending on whether a General Election is called.

Ongoing legal cases may also affect its passage – particularly the impending European Court of Justice ruling on a case brought by MPs Tom Watson and David Davis in relation to the Data Retention and Investigatory Powers Act (DRIPA). In the Lords debate, Lord Butler described the DRIPA ruling as “hanging over the whole issue”.

Elements of DRIPA – emergency legislation passed in 2014 – have been included in the Investigatory Powers Bill. If the ECJ upholds a decision by the High Court in July 2015 that the sections on self-authorised access and bulk retention of data breach fundamental EU Charter rights under Articles 7 and 8, then this could have a significant impact on the IP Bill.

It is likely that any temptation to ignore ECJ rulings relevant to the IP Bill (and more generally) in light of the leave vote will be resisted as any failure to comply with current EU treaty obligations could possibly provide a pretext for greater EU action against the UK to speed up Brexit. Although there is no mechanism to formally expel the UK from the EU, indirect action could be explored which might put pressure on the UK’s control of the exit process through Article 50.

In the Lords debate, there was disagreement over the impact of the leave vote on the Bill. Lord Rosser noted that the vote to leave the EU had “added to the complexity” of the Bill due to uncertainties over European cooperation on security issues, but the Advocate General for Scotland, Lord Keen of Elie did not believe that any changes to the Bill would be required in light of the Brexit vote.

For the time being, the Bill continues its path to Royal Assent – the House of Lords committee stage is due to begin on 11 July.

Lorna Woods: An overview of the Investigatory Powers Bill report by the Joint Committee on Human Rights

In this post, Professor Lorna Woods, University of Essex and Senior Associate Research Fellow at the Institute of Advanced Legal Studies, considers a report by the Joint Committee on Human Rights on the Investigatory Powers Bill.

The Joint Committee has reported on the IPB. In doing so, it has made clear that this is an expedited report to aid the bill’s hasty progress through Parliament. The Joint Committee does not suggest that its review covers all the issues, nor that it might not come back to issues. The Joint Committee discussed issues arising under seven headings: bulk powers; thematic warrants; modifications; MPs and the Wilson Doctrine; legal professional privilege (LPP); journalists’ sources; and oversightContinue reading

Update on Information Law and Policy Centre’s contribution to Investigatory Powers debate

As previously reported on this blog, our Information Law and Policy Centre (ILPC) at IALS has facilitated an ad hoc research group of academics and practitioners to contribute to the ongoing policy debate on surveillance following publication of the government’s Draft Investigatory Powers Bill. Members of this group published a clause-by-clause review examining their provenance – that is, whether the clauses come from existing legislation, or are newly introduced.

Lorna Woods, IALS senior associate research fellow and professor in law at the University of Essex, then submitted a revised version in her evidence to the joint select committee scrutinising the Bill. The committee used her evidence in its report published in February, for a table describing each investigatory capability in the draft bill (pp.32-37).

Separately, members of the Information Law and Policy Centre’s advisory board including Professor Lilian Edwards, Strathclyde University and Dr Lawrence McNamara, Bingham Centre for the Rule of Law, have signed an open letter published in the Telegraph calling on the government to give the Investigatory Powers Bill, which was introduced to the House of Commons on 1st March, the time it needs and not rush it through Parliament.

Members of the Centre have also participated in related events: Information Law and Policy Centre director Dr Judith Townend spoke at a symposium on the Bill at the University of Cambridge on 5 February 2016, and on 8th March, acted as discussant in an event on surveillance and human rights at Senate House, as part of a Seminar Series organised by the Institute of Commonwealth Studies and the Human Rights Consortium.  Other speakers included Kirsty Brimelow QC and Silkie Carlo, policy officer in technology and surveillance at Liberty.