To all Members of Parliament,
Re: An open letter from UK internet law academic experts
The Coalition Government, with support from the Opposition, introduced the Data Retention and Investigatory Powers Bill (“DRIP”) on July 10th. The bill was presented as a simple extension of existing data retention powers under the EU Data Retention Directive. This Directive was recently found incompatible with European human rights law by the Court of Justice of the European Union (CJEU).
The Home Secretary stated that this legislation was a direct response to the CJEU’s decision and crucial to maintaining current access to communications data for law enforcement and security services. The government insists the bill doesn’t introduce any new powers.
Our analysis shows this to be untrue. The bill significantly expands investigatory powers, increasing the British government’s ability to access both communications data and content. It would increase surveillance powers by allowing the government to:
- Force any person or company, including internet and telecommunications companies outside the UK, to comply with an interception warrant (Clause 4(2));
- Force entities outside the UK to execute an interception warrant for activities that occur outside the UK (Clause 4(2));
- Force any person or company outside the UK to take any action, including meeting technical requirements, to ensure ongoing assistance with UK interception efforts (Clause 4(6));
- Order any person or company outside the UK to obtain, retain, and disclose communications data (Clause 4(8)); and
- Order any person or company outside the UK to obtain, retain, and disclose communications data related to activities outside the UK (Clause 4(8)).
The legislation extends far beyond simply allowing data retention within the UK. DRIP attempts to broaden the jurisdictional reach of British interception powers, expanding the UK’s capacity to mandate the interception of communications content globally. These powers are not only unprecedented in the United Kingdom, but also represent some of the first of their kind worldwide.
Furthermore, since mass data retention by the UK falls under EU law (as it involves a derogation from the EU’s e-privacy Directive - Article 15, Directive 2002/58), the proposed bill arguably violates EU law where applicable. This is because such mass surveillance would still not meet the criteria outlined by the CJEU in the Digital Rights and Seitlinger judgment.
Additionally, the bill incorporates several changes to interception laws while the claimed urgency centers solely on the overturning of the Data Retention Directive. Even if a genuine emergency related to data retention existed, there’s no apparent reason for this urgency to extend to interception laws.
DRIP represents a significant expansion of the British surveillance state, not merely an administrative necessity. We implore the British Government to refrain from fast-tracking this legislation. Instead, they should allow full and proper parliamentary scrutiny to ensure Parliamentarians understand the true extent of powers this bill grants.
Signed,
Dr Subhajit Basu, University of Leeds
Dr Paul Bernal, University of East Anglia
Professor Ian Brown, Oxford University
Ray Corrigan, The Open University
Professor Lilian Edwards, University of Strathclyde
Dr Theodore Konstadinides, University of Surrey
Professor Chris Marsden, University of Sussex
Dr Karen Mc Cullagh, University of East Anglia
Dr. Daithà Mac SÃthigh, Newcastle University
Professor David Mead, University of East Anglia
Professor Andrew Murray, London School of Economics
Professor Steve Peers, University of Essex
Julia Powles, University of Cambridge
Professor Burkhard Schafer, University of Edinburgh
Professor Lorna Woods, University of Essex