Privacy experts have slammed the Home Office's draft Code of Practice for accessing communications data as a nebulous attempt to justify the Regulation of Investigatory Powers Act (RIPA).
The draft Code of Practice addresses the most controversial part of RIPA, which is expected to come into force later this year - it regulates monitoring of electronic communications such as email messages. At the centre of the controversy is the power that RIPA gives to law enforcement officers to monitor email communications.
The public consultation period was opened on Monday, but cyber-liberty advocates are angry that the government has made no attempt to set a framework for accessing personal communications data legitimately.
The Code of Practice accepts that "proportionality is a crucial concept", but privacy supporters argue that it offers little guidance to law enforcement officers on how to assess whether the aim of obtaining communications data on an individual is proportionate to what will be achieved by obtaining that data.
"The Code of Practice is a waste of time...the concept of proportionality is accepted in principle, but it is a relative term and has no formal substance," said Simon Davies, director of Privacy International. "One fundamental failing of the Code is that it doesn't contain supplementary notes -- it was not beyond the keel of government to produce a framework for interception standards," he added.
Lawyers disagree, saying that "proportionality" is a reasonable legal concept within the Data Protection Act 1998. "One of the 12 key concepts of the Act is that the processing of data must be reasonable and proportionate for business purposes," said Maury Shenk, partner at city law firm Steptoe & Johnson Rakisons.
But the main criticism is that the Code of Practice leaves the assessment of proportionality entirely to the discretion of an individual law enforcement officer.
These individuals can range from police superintendents to HM Customs and Excise officials and the Secret Intelligence Service. Privacy advocates are frustrated that authorisation warrants escape any form of judicial scrutiny, but instead are based on a subjective interpretation of whether or not a case is justified by the interests of national security.
This is reinforced in section 5.9 of the draft that states, "a designated person will make a decision whether to grant an authorisation based upon the application which is made."
The director of Liberty, John Wadham, is calling for the introduction of a Privacy Act to reform RIPA, and ensure that the privacy of individuals is not compromised. "This Code does not protect our privacy because the police and many other agencies will be able to force the disclosure of this information. They do not have to obtain a warrant and the list of reasons why they can authorise themselves to seek this information is very long indeed," said Wadham.
The consultation period will finish on 2 November.
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