By Lucy Caulkett-
A modification to the snooper’s charter law will dis-empower senior police officers from freely accessing personal phone and web browsing record.
The late changes proposed by ministers were proposed by ministers in an attempt to comply with a European court ruling on Britain’s mass surveillance powers.
A Home Office consultation paper published on Thursday imposes restrictions to the powers available to the police in accessing personal data of individuals in the UK. Over 250,000 requests are made each year by police and public bodies for access to personal communications data by the police .
In compliance with a European Court ruling on Britain’s mass surveillance powers, such requests will in future be restricted to investigations into crimes carrying a prison sentence of at least six months.
The 2016 European court of justice (ECJ) ruling was brought by Labour’s deputy leader, Tom Watson, with David Davis, now the Brexit secretary, does not apply to the “retention or acquisition” of personal phone, email, web history or other communications data by national security organisations such as GCHQ, MI6 or MI5, “as national security is outside the scope of EU law”.
The new changes to the snooper’s charter are in conjunction with the ECJ ruling, which concluded that the “general and indiscriminate retention” of personal communications data “cannot be considered justified within a democratic society”.
SAFEGUARDS
The European judges ruled that such mass harvesting of personal communications data could only be considered lawful if accompanied by strong safeguards including judicial or independent authorisation, and only with the objective of fighting serious crime including terrorism. Watson is far from content with the scale of the amendments, arguing that flaws still exist in the law. He argued:
“The current legislation fails to protect people’s fundamental rights or respect the rule of law. That’s what my legal challenge proved and I’m glad Amber Rudd is making significant concessions today. But I will be asking the court to go further, because today’s proposals from the Home Office are still flawed.
“Ministers aren’t above the law – they don’t get to pick and choose which rights violations they address and they can’t haggle with the courts to avoid properly protecting people’s freedom. All of the fundamental safeguards demanded by the court must now be implemented.”
Communications data encompasses the parties involved in communication, the timing of those communications, their locations, and the mechanisms of the communication, like email, texts, or web page. The content of exchanges monitored are covered separately by
The Office for Communications Data Authorisation will hold the powers of approval to communication data requests under the investigatory powers commissioner, Lord Justice Fulford. They will displace the previously held powers of authority exercised by police officers, at the level of superintendent or inspector, and by senior officers in Border Force, the Department for Work and Pensions and HM Revenue & Customs.
The threshold for tracking personal web browsing histories will remains at 12 months, whilst the threshold for the use of communication data to investigations of serious crimes will be six months to ensure less serious crimes , which are nevertheless serious, like stalking and grooming remain within the category of monitoring.
The security minister, Ben Wallace, said communications data was used in the vast majority of serious and organised crime prosecutions and had been used in every major security services counter-terrorism investigation over the past decade and its importance could not be overstated.
“For example, it is often the only way to identify paedophiles involved in online child abuse and can be used to identify where and when these horrendous crimes have taken place,” he said.
Some organisations have still criticised the amendments as being insufficient. Human rights organisation, -liberty- called the concessions “half-baked”. “This is window dressing for indiscriminate surveillance of the public, when ministers should be getting on with changing the law,” said Silkie Carlo, Liberty’s senior advocacy officer.
“We warned the government from the start that the authoritarian surveillance powers in the Investigatory Powers Act were unlawful. It should be a source of deep embarrassment that, less than a year after it passed, ministers have had to launch a public consultation asking for help to make it comply with people’s basic rights.”
The changes made are positive and are confirmation that flaws and gaps in the law can not always be completely avoid. Laws are not always perfect, but the great thing about the justice system is that it is usually a matter of time, and a question of decision before a bad law is changed. Had Watson and David Davis never challenged the law to the European Courts of justice, we would never have had this change.