Emergency phone and internet data surveillance bill to be rushed through Parliament

New legislation is being passed at high speed in an attempt to stymie changes that force UK communications companies to store data on all their customers' communications.
Written by Jo Best, Contributor
Image: Shutterstock

Learning from past mistakes is clearly not considered a virtue in some quarters of government. Today, prime minister David Cameron announced emergency surveillance legislation that will force a continuation of blanket retention of UK citizens' communications data.

According to the BBC, the legislation will force mobile and landline providers and ISPs to record and store details of their customers' phone calls, emails, text messages, and other communications for a maximum of 12 months.

The legislation, known as the emergency Data Retention and Investigation Powers Bill, is being introduced so "UK law enforcement and intelligence agencies can maintain their ability to access the telecommunications data they need to investigate criminal activity and protect the public", Downing Street said.

The bill has cross-party support, even though the text of the bill has not been published and the government has not stipulated precisely what "communications data" will cover, describing it only as "metadata" about communications, not their content. This definition has proved problematic before, as the two can often blur in online communications.

The Data Retention and Investigation Powers Bill will include a 'sunset clause', whereby the powers given by the act must be reviewed in 2016.

The bill is rightly already proving controversial, on a number of fronts.

Most obviously, the proposed legislation appears to run contrary to a recent European Court of Justice decision. Handed down in April, the ruling effectively overturned a European Union directive that mandated telecom operators must retain all their customers' communications data for up to two years.

The court said the directive "interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data". Following the ruling, a number of European ISPs stopped storing customer data almost immediately.

It appears that the new legislation could head off any effort by UK communications providers to do the same.

"The government is tacitly admitting that our current data retention laws are illegal and that they are required to re-legislate," said Jim Killock, executive director of the Open Rights Group. "The European Court has ruled that data retention should be limited and blanket retention cannot be justified because it interferes with our right to privacy. However, [Home Secretary] Theresa May actually wants to increase the amount of communications data that is kept about us."

By rushing in the emergency legislation, the government will not have to implement the ECJ's ruling in UK law. The government admits that counteracting the ECJ decision is one of the prime drivers behind introducing the bill, along with requests "for a clearer legal framework to underpin [companies'] cooperation with law enforcement and intelligence agencies to intercept what terrorists and serious criminals are saying to each other".

The UK's proposed legislation also bears resemblance to the earlier Communications Data Bill, which was put before parliament in 2012. The ambiguously-worded bill demanded communications providers store "traffic data, use data or subscriber data" from their customers — including social media activity and web browsing history — and potentially also extended to private companies as well. Fraught with privacy, cost and technology issues, the problematic bill was eventually kicked into the long grass after some years of debate.

Perhaps most worryingly, today's proposed legislation flies in the face of typical parliamentary due process.

According to Labour MP Tom Watson, many MPs who will be expected to vote on the legislation won't have seen the text of the draft bill and may not be present in the house when the vote is held.

"If you look on Parliament's website tonight, you will not see the name, nor the text of the Bill to be considered... None of your MPs have even read this legislation, let alone been able to scrutinise it," Watson wrote on Medium yesterday.

"None of your elected backbench MPs have been told what Bill is to be debated on Monday. It’s Wednesday evening. Tomorrow, MPs are on a 'one line whip' — ie, they can return to their constituencies this evening. [That is, there will be no weekend session to discuss the legislation.]

"Imagine how outrageous it would be, if tomorrow, the government were to announce emergency legislation to an empty chamber. Imagine if that emergency legislation was to be introduced on Monday or Tuesday, with the intention of it slipping through the Commons and the Lords in a single day."

[Update: the draft documents have now been published here.]

Quite why the government may need to introduce such powers when GCHQ, the UK's surveillance agency, has been revealed to be regularly indiscriminately intercepting communications both at home and abroad, including gathering webcam images from Yahoo messaging services, is unknown.

The government has however thought to include a privacy fig leaf in its proposals today. Along with introducing annual transparency reports, the government said it would review the unpopular Regulation of Investigatory Powers Act before 2016 to suggest how the law should be updated, impose restrictions on which agencies can access the information gathered, and set up a "Privacy and Civil Liberties Oversight Board on the American model" to consider the privacy impact of any anti-terrorist legislation.

"We will appoint a senior diplomat to lead discussions with the American government and the internet companies to establish a new international agreement for sharing data between legal jurisdictions," it said.

However, recent events have shown that there has been exemplary sharing of data-sharing between UK and US authorities without any such diplomatic interventions, though the new discussions may at least allow the practices to be aired without any help from Edward Snowden.

Read more on surveillance

Editorial standards