As our lives have increasingly become data-driven and digital by default, finding the balance between privacy and national security/law enforcement has become one of the central legal, political, and ethical debates of the information age. On 11 May, the Director of the Information Law and Policy Centre, Dr Nora Ni Loideain joined a panel of experts at a Bingham Centre event to discuss the latest round in the legal debate – the European Court of Justice’s (CJEU) recent ruling in a case brought by Tom Watson MP against the UK government in regard to the legality of the Data Retention and Investigatory Powers Act (DRIPA). Although DRIPA has now expired, the CJEU Grand Chamber judgment delivered last December also calls into question the legal status of the legislation which replaced DRIPA in 2016, the Investigatory Powers Act (IP Act).
According to the panel chair, Professor Lorna Woods, the CJEU judgment formed what might be considered a “strong view” on privacy and regarded mass data retention as “disproportionate” compared to citizens’ rights to privacy. In this regard, the ruling continued in the same vein as the landmark 2014 Digital Rights Ireland judgment, which struck down the EU’s instrument for mandatory mass data retention – the Data Retention Directive – and declared it to be incompatible with the right to respect for private life and data protection protected by Articles 7 and 8 of the EU Charter of Fundamental Rights.
As we wait for the UK Court of Appeal to interpret the Watson/Tele2 judgment in relation to UK law, the panel considered what the Grand Chamber’s judgment might mean for mass data retention. In particular, Professor Lorna Woods put it to the panel and audience to consider whether the scope of data retention currently provided for under the IP Act 2016 was still possible in light of the reasoning of the CJEU Grand Chamber’s judgment. Continue reading
In this guest post for World Press Freedom Day, Julie Posetti at the University of Wollongong, analyses how mass surveillance and data retention regimes are threatening journalists’ sources. Her new UNESCO report explores similar themes to the Information Law and Policy Centre’s own research in this area.
The ability of journalists to report without fear is under threat from mass surveillance and data retention.
Released this week, my UNESCO report Protecting Journalism Sources in the Digital Age shows that laws protecting journalists and sources globally are not keeping up with the challenges posed by indiscriminate data collection and the spill-over effects of anti-terrorism and national security legislation.
Examining legal changes to how sources are protected across 121 countries between 2007-2015, I found that calls, text messages, and emails made in the process of reporting are increasingly exposed. In particular, they can be caught up in the nets of law enforcement and national security agencies as they trawl for evidence of criminal activity and terrorism, and conduct leak investigations.
Source protection laws should be updated to protect the online communications of journalists and whistleblowers.
If we do not strengthen legal protections and limit the impact of surveillance and data retention, investigative journalism that relies on confidential sources will be difficult to sustain. Continue reading
An event hosted by the Bingham Centre for the Rule of Law and sponsored by Simmons & Simmons.
Date: 11th May 2017
Time: 17:30 – 19:30 (Registration open from 17:00). Followed by a reception
Venue: Simmons & Simmons, City Point, 1 Ropemaker Street, London EC2Y 9SS
Cost: Members £15, Non-members £25
This event can be booked on the British Institute for International and Comparative Law website. Book now.
The judgment of the CJEU in the Watson case was handed down shortly before the year’s end in 2016. The determination that member states may not impose on communications providers a general obligation to retain data was applauded by privacy groups and has undoubtedly caused disquiet among those involved in policing and intelligence. What parliamentarians and judges will make of it in the coming months – and, post-Brexit, years – is both uncertain and important.
In this event, experts will examine the strengths, weaknesses and implications of the decision, with an eye to rights protections, the need to combat serious crime, and the practicalities of managing both in light of the European Court’s decision.
- The Rt Hon Dominic Grieve QC MP, Chair of the Intelligence and Security Committee
- Max Hill QC, Independent Reviewer of Terrorism Legislation
- Dr Nora Ni Loideain, Incoming Director, Information Law and Policy Centre, IALS
- Renate Samson, Chief Executive, Big Brother Watch
- Professor Lorna Woods, University of Essex
For more information download the event flyer and join in the conversation: @BinghamCentre, #Watson
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