Legislating on communications data

 

Next week Parliament will debate a Bill to reaffirm the law on surveillance of communications in the UK. Several constituents have written expressing their concern about this. I am therefore  reproducing beneath the government’s argument on why this measure is needed and how it mainly restates the existing position. As all 3 party leaders favour this Bill it is likely to carry, but backbench MPs will of course question and probe to try to ensure the powers are necessary, limited and proportionate and certainly not greater than the current ones.

 

 

 

The government writes:

“COMMUNICATIONS DATA AND LAWFUL INTERCEPTION

It is the first duty of Government to protect the public and we are today introducing emergency legislation to ensure that our law enforcement and intelligence agencies have access to the tools they need to keep us safe.  Access to information relating to communications, subject to robust safeguards, is vital in the fight against crime and terrorism and has been used successfully for many years.

 

Communications data – the who, where, when and how of a communication but not its content – is a vital tool in the investigation of crime and safeguarding the public.  It has been used in 95% of serious and organised crime investigations handled by the Crown Prosecution Service and every major Security Service counter-terrorism investigation over the last decade.

 

The interception of the content of communications is of critical importance to the preservation of national security. Since 2010, the majority of the Security Service’s top priority UK counter-terrorism investigations have used intercept capabilities in some form to identify, understand or disrupt plots seeking to harm the UK and its citizens.  However, two recent developments have put these crucial capabilities at risk.  Without legislation, we face the real prospect of a serious degradation in the ability of law enforcement and intelligence agencies to do their jobs.

 

Firstly, the European Court of Justice judgment of 8 April declared the EU Data Retention Directive (2006) invalid.  This Directive required Member States in Europe to provide for a mandatory communications data retention framework covering certain data for the purpose of the investigation of serious crime.  Following the judgment, our domestic Data Retention (EC Directive) Regulations 2009, which transposed the Directive, remain in force.  However, we need to legislate to maintain an effective mandatory communications data retention framework, and to address the ruling unambiguously and immediately.

 

If companies could no longer be required to retain communications data, law enforcement’s capability to prevent and detect crime and protect the public would be severely degraded; many investigations would be delayed and some would cease entirely.

 

The second component of the Bill will put beyond doubt that companies providing communication services to customers in the UK must comply with lawful requests under the Regulation of Investigatory Powers Act 2000 irrespective of where those companies are located.    A number of overseas communication service providers have questioned whether they are required to comply with obligations under the Act in relation to the interception of communications.

 

With the increasing globalisation of communications, any decrease in cooperation from overseas providers could have a devastating impact on national security.  If we lose visibility of what terrorists are saying to each other, we will lose the ability to understand and mitigate the threat that they pose.

 

This Bill will ensure that communications data continues to be available when it is needed.  Whilst most of the European Court’s criticisms are already addressed in UK law, the Bill will also respond to the judgment.  The European Court’s judgment did not take into account national laws on access to communications, and in particular the UK’s access regime with its robust safeguards.  Our communications data regime is internationally respected, and already addresses most of the criticisms made in the judgment.  However, we are introducing a number of new safeguards to respond to the judgment, such as enhancing our data retention notice regime, and formalising the requirements placed on communications companies to safeguard this crucial data.  We will also create a Code of Practice on Data Retention, which will put best-practice guidance on a statutory footing.  Furthermore, the Bill will also put beyond doubt the extra-territorial application of RIPA to ensure that companies, irrespective of where they are based, can comply with their obligations.

 

The legislation does not create any new powers, rights of access or obligations on communications companies beyond those that already exist. It does not seek to replicate the proposals that were included in the Draft Communications Data Bill, published in 2012. And it would sit aside the already robust regime RIPA provides to regulate access to retained data.

 

We must act now to ensure that the capability of our law enforcement and intelligence agencies to prevent and detect crime, protect the public and ensure national security does not rapidly and seriously diminish.  The need to act is made all the more pressing because the threats we face remain considerable, not least the collapse of Syria, the emergence of the Islamic State of Iraq and the Levant, organised crime that crosses national boundaries and the expanding scope of cybercrime.

 

All these threats and many more should remind us that the world is a dangerous place and the United Kingdom needs the capabilities to defend its interests and protect its citizens.

 

The proposals on communications data and investigatory powers which I have set out above are necessary to ensure that law enforcement and security agencies are able to continue making use of these essential tools. These provisions are not intended to fill the gap which we were looking to close with the draft communications data bill but to ensure that law enforcement can continue to access the material which they currently have access to.”