UK's High Court Disapplies UK Data Retention Laws

Wednesday 22 July 2015 @ 11.20 a.m. | Crime | IP & Media

In what has been reported as a historically significant decision, the UK High Court of Justice has ruled in R v Davis and Others (see [2015] EWHC 2092 (Admin) - 17 July 2015), that the Data Retention and Investigatory Powers Act 2014 (UK) (DRIPA) contravened European Union Law and must be "disapplied" in the UK by March 2016. The High Court also found access to data under DRIPA was not sufficiently restricted and that the process lacked independent prior approval.

Background and Relevance

DRIPA like the equivalent Australian law, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (No 39 of 2015) (Cth) and the amendments it made to Australian Telecommunications laws has been controversial and the subject of strong criticism from civil liberties groups and the legal profession. DRIPA was initially introduced into the UK Parliament on 14 July 2014 and then rushed through Parliament passing into law on 14 July 2014, in an usually short four days of debate.

DRIPA allows the UK's Home Secretary, a senior government minister, to issue notices to carriage service providers (ISPs) requiring them to retain telecommunications and Internet data. Such retention notices may be issued for reasons that are described as including, being in the interests of "national security," "public safety" or "the economic well-being of the United Kingdom," or for reasons such as "preventing or detecting crime."

The case against DRIPA in the UK was initiated by the Conservative MP David Davis and Labour MP Tom Watson, who joined with civil liberties campaigners Peter Brice and Geoffrey Lewis, to challenge ". . . the width of the powers to retain and gain access . . ." to data under DRIPA.

The High Court Decision

The two justices of the UK High Court hearing the case, Justices Bean and Collins found that DRIPA did not include "clear and precise rules" restricting the use of any data retained to the investigation of ". . . precisely defined serious offences." Further, Justices Bean and Collins concluded that the relevant authorities were not required to ". . . seek prior independent review in order to obtain communications data" which was an aspect of the legislation that removed the potential for "adequate oversight" of its application.

Additionally, a key issue in the case examined by the UK High Court was whether or not the data retention scheme established by DRIPA went against the European Union's "Charter of Fundamental Rights" as it had been interpreted by the European Union Court of Justice. The Charter of Fundamental rights stipulates that "... everyone has the right to respect for his or her private and family life, home and communications ..." and that "... everyone has the right to the protection of personal data concerning him or her ..." and the DRIPA was found to have contravened this.

In the judgement of the UK High Court, Justices Bean and Collins indicate their concerns regarding what is known as "scope creep" (the progressive broadening of application through use) and the lack of independent oversight that have plagued data retention schemes across the world.

In this respect, the point was well made by Conservative MP David Davis who is reported, while commenting on how the law was rushed through Parliament, as saying:

"[The government] didn't allow any debate of what this metadata is used for. They make assertions that this is to catch paedophiles or terrorists -- they don't say it's [for] motoring offences."

The practical effect of the UK High Court's ruling is that the unlawful sections of DRIPA will stay in force until the end of March 2016, allowing the government time to draft new complying legislation.

The UK Governments Response

Predictably, it is reported that the UK Government has announced that it will appeal the UK High Court's judgment, stating it will take ". . . whatever steps are necessary to ensure communications data continues to be available when it is needed." Commenting on the case, the UK Security Minister John Hayes is reported as saying:

"We disagree absolutely with this judgment and will seek an appeal . . . [metadata, also known as communications data] . . . is not just crucial in the investigation of serious crime. It is also a fundamental part of investigating other crimes which still have a severe impact, such as stalking and harassment, as well as locating missing people."

Developments Elsewhere and Other Responses

The UK laws are not unique in being opposed. In the USA, the bulk collection of telephone data by security agencies has been legally challenged and in Europe, similar actions have been undertaken, with a Dutch court with The Hague ruling in March 2015 to strike down laws that required telecommunications companies to retain data for up to 12 months.

The Guardian reports that: "Human rights groups welcomed the ruling . . ." quoting Rachel Logan, Amnesty UK’s legal programme director, as saying:

“It shouldn’t be left to concerned MPs and campaign organisations to show that it’s totally unacceptable to rush through draconian powers which allow government agents to spy on citizens without proper safeguards.”

and further quoting James Welch, the legal director for Liberty as follows:

“[We have] long called for fundamental reform of our surveillance laws to ensure the public’s rights are properly respected by our government – the chorus of voices demanding change is now growing. The high court has now added its voice, ruling key provisions of DRIPA unlawful. Now is the time for the home secretary to commit publicly to surveillance conducted with proper respect for privacy, democracy and the rule of law – not plough on with more of the same.”

How the Decision May Affect Australia

Whilst there is similarity between the UK and the Australian law, the means used to attack the UK law are not available in Australia, simply because the European Union's "Charter of Fundamental Rights" is not applicable to Australian law. This said, however, there are a number of interesting observations to make from the decision which may well apply in Australia, including the notion that such laws are open to "scope creep" and that to avoid this they must be subject to vigilant and independent supervision. This is a debate that is still open on the current Australian laws as they have been enacted. This concern was reflected in the UK Interception of Communication Commissioner's half-yearly report, which as one source reported, had:

". . . revealed several errors in the use of metadata, including its possible use for whistle blower witch hunting and a confirmed instance of an innocent person's home being raided because of a typo".

Another, observation of interest with respect to Australia was the emphasis placed on the presence of such legislation in the UK as justification for similar laws to be made in Australia, and whether the UK's laws now being found to be invalid will bring on any attempts by the government or even the opposition to modify the Australian laws.

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