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Emergency DRIP law rushed through Parliament

17 July 2014

The government has proposed that emergency legislation be passed before the summer recess of Parliament, to ensure that police and security services can continue to access phone and internet records, with internet and telephone providers forced to retain customer data.

The data to be retained does not include the content of the communications, but will include information such as call logs and numbers dialled. However, the law reinforces the ability of authorities to identify a target for additional monitoring – which could include listening to phone calls.

This is with the aim of aiding investigations that rely on retrospectively accessing data for evidential purposes, whilst providing a clearer legal framework for companies in order to underpin their cooperation with law enforcement and intelligence agencies.

The new law will also provide for the requirements to apply to companies based abroad, whose internet and phone services are used in the UK.

The powers would come via the proposed Data Retention and Investigatory Powers Bill (“DRIP”), as a replacement for the Data Retention (EC Directive) Regulations 2009.

The 2009 Regulations had implemented the European Data Retention Directive, which the European Court of Justice ruled in April was invalid as it infringed human rights and therefore telecoms’ companies were no longer required to log communications information on their subscribers for up to 12 months.

In its ruling, the European Court of Justice set out some key principles designed to safeguard fundamental rights, with which any data retention legislation would have to comply. The proposed Bill does not cover how the government intends to comply with these principles, but these will probably be addressed in secondary legislation.

The emergency legislation has been pushed through to deal with the threat of legal action by campaigners towards services providers who continued to hold data, as this could prove very useful to court litigation and criminal or counter–terrorist investigations.

The ability to access content will be via a warrant signed by the Secretary of State and the new law will try to clarify the procedure to follow when such a warrant is issued with regards to the bugging of suspects’ phones by the security services.

Despite government reassurances that the proposed law will not “change the status quo” in Britain, nor create a “snoopers’ charter”, civil liberties groups believe that the new law will invade people’s right to privacy.

Nevertheless, and unusually, the proposed Bill has received cross-party support, which is a strong indication of the importance given to it as a way to protect existing interception capabilities. However, the Home Secretary, Theresa May, has said the government would accept a Labour proposal for reports every six months by the Interception of Communications Commissioner on how the new law is working.

All House of Commons stages took place on 15 July 2014, and DRIP moved to the House of Lords for urgent consideration on 16 July 2014.

This article was written by Vanessa Barnett.

For more information contact Vanessa on +44 (0)20 7203 5228 or vanessa.barnett@crsblaw.com