Tuesday, 17 June 2014

NGOs to test the Home Office’s stance on communications data retention

Lawyers from the Open Rights Group, Liberty and Privacy International have met to discuss what sort of intervention might be appropriate, given the European Court of Justice’s views on the EU’s Data Retention Directive. What steps should be taken by the Home Office, in light of the way the UK has implemented what is now a defunct Directive?

More specifically, what alternative legislation would be deemed acceptable by Parliament if it were felt that the UK’s data retention legislation, which predates the Data Retention Directive, was currently inadequate? What communications records should now be retained, for how long, by whom, and for use in what types of investigations?

According to the ORG, there is no legal basis for continuing data retention in the UK. But, given the very muted adverse public reaction to the publication of Vodafone’s recent transparency report, outlining, where it is permitted, the volumes of law enforcement requests it receives in its various operating countries, it will be interesting to monitor how the public displays their concern at current retention and investigation standards.

I’m also wondering how, given the state’s presumed capabilities in this area, the NGO’s lawyers will manage to control the flow of sensitive communications between themselves, to prevent any unwanted snooping before they are ready to reveal their hand.

If I were advising the NGO’s legal teams, I wouldn’t bother with anything too fancy when it comes to encrypting the communications. I’m confident that the Home Office will play the game, and that it won’t authorise any attempts to access any confidential material that may be shared between these parties. After all, they’re only testing the current law. It’s not as though anyone is planning an armed uprising, or are in any way threatening the British national interest.

Can there be any better way for the Home Office illustrate its adherence to British values than to wait until these NGOs have shown their hand, rather than seeking to learn in advance what they’re up to?