Yui Mok/PA Archive/PA Images. All rights reserved.For critics of the UK’s Investigatory Powers Act, the Court of Justice of the European Union in its ruling on MP Tom Watson’s challenge against the Data Retention and Investigatory Powers Act (DRIPA) has given us an early Christmas present. The court has ruled that the indiscriminate retention of electronic communications data by governments is incompatible with a modern democracy.
The CJEU reaffirms the individual’s right to privacy and outlines the necessarily stringent thresholds necessary to ensure that the retention of data remains “justified within a democratic society”. In regards to DRIPA, this threshold was not met: “National legislation such as that at issue in the main proceedings therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified, within a democratic society”.
The ruling offers a stark rebuttal to the government’s justification for DRIPA and by implication the IP Act, which codifies a great deal of powers that indiscriminately retain data on UK citizens. This includes measures that collect data on the many to find the few, an approach that is undermined by the ruling’s position that “the retention of data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary”.
Moving beyond these thresholds, the ruling also raises questions about the government’s stipulation that metadata is less sensitive than content data, a belief that led the then-Home Secretary, Theresa May to state, though never repeat, that Internet Connection Records, are “simply the modern equivalent of an itemised phone bill”. Quoting the Advocate General, the ruling states: “in particular, that data provides the means…of establishing a profile of the individuals concerned, information that is no less sensitive, having regard to the right to privacy, than the actual content of communications.”
While this can only be used to present potential implications for the IP Act, as it currently stands, a great number of powers in the bill are effectively unlawful and require change. But in the ongoing tumult around our relationship with Europe following the Brexit vote, it is vital that this ruling is given due attention and scrutiny to ensure that our laws adhere to established and tested human rights protections written into EU law, without it being ignored as a ruling from a different time.
As highlighted by the ruling, “the interference entailed by such legislation in the fundamental rights enshrined in Articles 7 and 8 of the Charter is very far-reaching and must be considered to be particularly serious.” This seriousness cannot be drowned out by the partisan arguments that are shaping our negotiating stance on Brexit. The implications of suspicionless surveillance on the right to privacy and freedom of expression cannot be downplayed nor should they be deployed as a pawn in the debate about our relationship with Europe.
If our future lies outside the European Union, it should not exist in a bubble only of our own making. A number of vital rulings in the European Court of Human Rights, statements from the UN Special Rapporteur on the Right to Privacy and now the CJEU have all highlighted distinct issues with suspicionless surveillance as outlined in both DRIPA and the IP Act that cannot be ignored. Our strength as a nation, as a leading modern democracy, rests on our ability to listen to others, scrutinise without prejudice and advocate for what is best for our democracy, not necessarily our politics.