Draft Communications Data Bill

Surveillance is a necessary activity in the fight against serious crime.  When targeted, it can play a vital part in our national security.  Unnecessary and excessive surveillance, however, destroys our privacy and blights our liberty.

The Draft Bill builds on the existing – and inadequate – regulatory provisions in Regulation of Investigatory Powers Act 2000 (‘RIPA’).   JUSTICE considers that the RIPA model is neither forward-looking nor human rights compliant.

The provisions in the Draft Bill propose a nationwide and blanket intrusion into the private life of every person in the UK using modern technology to communicate, to enhance their daily lives and support their freedom of expression.  It would provide for the exponential expansion of the collection of information about how we use the internet, mobile telephones, landlines and the post to communicate with each other.

Clause 1 creates a broad delegated power which will allow the Secretary of State to compel “telecommunications operators” to generate, collect or otherwise obtain new data about our communications which is neither required by providers for commercial purposes nor currently held.[1]   It makes clear that the requirements which can be imposed will be very broad, including to generate, collect, retain and process data; to comply with specific standards or to use specific systems (including through the development, acquisition and use of new software or hardware).

However, the detail of how these arrangements will be secured is left to secondary legislation and very little information is provided in either the Explanatory Notes or the accompanying impact assessments prepared by the Home Office.

Part 2 of the Bill provides the regulatory regime for access to the data collected under Part 1.  It broadly replicates the existing administrative procedures in RIPA, with the only prior judicial authorisation required by local authorities (Clause 11).  All other public authorities will be able to access the data after self-authorisation following an administrative process set out in the Draft Bill (Clause 9).  The list of public authorities empowered to access the data collected will be provided by Order. At a high point, in 2007, 795 public bodies were eligible to access communications data under RIPA, without the need for prior judicial authorisation.