EU Data Retention plans implications for UK Regulation of Investigatory Powers Act

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An interesting week on the European Union Data Retention front. The EU Council, shamefully steered by the United Kingdom which currently holds the Presidency, seems to be trying sneak some controversial Communications Data Retention decisions.

Communications Data Retention is controversial because it involves storing vast amounts of data , priomarily that of innocent people, not just those people being specifically targetted in Police or Intelligence agency investigations.

The EU Commission came up with a different but still draconian and ill thought out version of the plan.

The European Parliament seems to have rejected this, but the over powerful EU Council may still try to sneak in their version during December.

The Open Rights Group alerted us to the lobbying of MEPs by some corporate vested inteests which are trying to extend the plans for permitting access to Retained Communications Data to investigations for any petty criminal offence. These companies are also lobbying for the minor civil offences such as illegal use of copyrighted material to be redfined as criminal offences.

The prospect of rich foreign media and entertainement companies being allowed to have access to the retained Communications Traffic Data of 450 million, mostly innocent citizens of the European Union, either dfirectly, or, at public taxpayers expense, through the policee authorities, is a repellant one, given these industries' tarnished record of false accusations against their own innocent customers and the exploitation of original music and other artists.

These backroom deals and procedural shenanigans caught the attention of Nosemonkey

Then the 58,000 signature EU wide Data Retention is No Solution petition was handed in to the European Parliaemnt.

Then as , Ian Brown The Blog of Doom reported, the European Parliament's civil liberties justice and home affairs committee (LIBE) has voted on an amended version of the EU Commissions draft directive.

EurActiv report of the Committee's complicated deliberations, does leave us wondering about what this supposedly leass authoritarian version of the Communications Data Retention directive would mean for us in the UK if it were adpoted, especially with regard to the Regulation of Investigatory powers Act 2000 Part 1, Chapter 2, Aquisition and Disclosure of Communications Data.

We are not sure that we completely agree with Ian Brown:

Most interestingly, a further amendment requires judicial authorisation before retained data can be accessed. This would be a major change to UK law, where government agencies can currently self-authorise access to communications data.

However the EurActiv report says

Competent authorities: LIBE adopted unanimously an amendment that limits use of the stored data to "the judicial authorities and national authorities responsible for the investigation, detection and prosecution of serious criminal offences".

Surely the UK Government would interpret the "national authorities" to be those currently authorised to get access to Commmunications Data under the exisiting Regulation of Investigatory Powers Act 2000 which includes a vast array of Government organisations from the security services through to Local Council Trading Standards departments, none of which requires judicial permission i.e. a warrant signed by an independent judge.

or with Suw Charman at the Open Rights Group is correbt to focus on

The list of ’serious’ criminal offences has been defined as being those crimes listed for use in the EU Arrest Warrant legislation


EurActiv reports:

Scope: The Council wanted the data to be available for "the prevention, investigation, detection and prosecution of serious criminal offences, such as terrorism and organised crime." A majority of the LIBE committee considered this definition to be too open and refers instead to "criminal offences, as referred to in Article 2 (2) of Council Framework Decision 2002/584/JHA" on "the European arrest warrant and the surrender procedures between Member States". A more far-reaching amendment form the Green/EFA group that aimed at exluding non-capital crimes from this list, was voted down.

However, if you actually read the creepy European Arrest Warrant definition of "crime" in Article 2 (2):

COUNCIL FRAMEWORK DECISION
of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States
(2002/584/JHA

Article 2
Scope of the European arrest warrant
...

2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

  • participation in a criminal organisation,
  • terrorism,
  • trafficking in human beings,
  • sexual exploitation of children and child pornography,
  • illicit trafficking in narcotic drugs and psychotropic substances,
  • illicit trafficking in weapons, munitions and explosives,
  • corruption,
  • fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of theEuropean Communities' financial interests,
  • laundering of the proceeds of crime,
  • counterfeiting currency, including of the euro,
  • computer-related crime,
  • environmental crime, including illicit trafficking in
    endangered animal species and in endangered plant species
    and varieties,
  • facilitation of unauthorised entry and residence,
  • murder, grievous bodily injury,
  • illicit trade in human organs and tissue,
  • kidnapping, illegal restraint and hostage-taking,
  • racism and xenophobia,
  • organised or armed robbery,
  • illicit trafficking in cultural goods, including antiques and works of art,
  • swindling,
  • racketeering and extortion,
  • counterfeiting and piracy of products,
  • forgery of administrative documents and trafficking therein,
  • forgery of means of payment,
  • illicit trafficking in hormonal substances and other growth promoters,
  • illicit trafficking in nuclear or radioactive materials,
  • trafficking in stolen vehicles,
  • rape,
  • arson,
  • crimes within the jurisdiction of the International Criminal Court,
  • unlawful seizure of aircraft/ships,
  • sabotage.

This list of specific types of crime is less "catch all" than than the vague, obviously UK Home Office inspired, "terrorism or serious crime" wording.

However, if access to Communications Traffic Data is limited to this European Arrest Warrant definition, then it will also totally prevent some of the controversial non-Police access to Communications Traffic Data e.g. by Local Authority Trading Standards investigations of rogue traders or the Department for Work and Pensions investigations of petty benefits fraud etc. especially since the test of at least 3 years in prison is written into the European Arrest Warranr definition. This test applies under RIPA to the interception of electronic data , but not to Communications Traffic Data.

The European Arrest Warrant definition includes terrorism, but it does not include other areas of interest to security and intelligence agencies such as espionage.

Will the EU Council of Ministers ignore the EU Parliament again on this Communications Traffic Data Retention directive ?

Where, in all this talk of "Data Retention", are there any plans or directives or leadership about other forms of Data Retention which should be considered and regulated e.g. CCTV camera video tape or hard disk data retention or DNA or RNA etc.Genetic Database retention of human tissue samples and processed "fingerprints", or other Biometric Identifier databases ?

1 Comments

While the LIBE amendments limit use of retained data to judicial and national authority purposes, EurActiv also reports that:

LIBE has clarified that "the approval of the judicial authorities" is necessary for the provision of retained data, independently of what a member state's law tradition says on the competence in such cases.

The actual text of the amendments don't yet seem to be available, so we need to check this. But it could be a real sticking point with the UK government, who have strongly resisted judicial authorisation for intercepts and communications data access.

About this blog

This United Kingdom based blog attempts to draw public attention to, and comments on, some of the current trends in ever cheaper and more widespread surveillance technology being deployed to satisfy the rapacious demand by state and corporate bureaucracies and criminals for your private details, and the technological ignorance of our politicians and civil servants who frame our legal systems.

The hope is that you the readers, will help to insist that strong safeguards for the privacy of the individual are implemented, especially in these times of increased alert over possible terrorist or criminal activity. If the systems which should help to protect us can be easily abused to supress our freedoms, then the terrorists will have won.

We know that there are decent, honest, trustworthy individual politicians, civil servants, law enforcement, intelligence agency personnel and broadcast, print and internet journalists etc., who often feel powerless or trapped in the system. They need the assistance of external, detailed, informed, public scrutiny to help them to resist deliberate or unthinking policies, which erode our freedoms and liberties.

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Everyone’s Guide to By-Passing Internet Censorship for Citizens Worldwide (.pdf - 31 pages), by the Citizenlab at the University of Toronto.

Handbook for Bloggers and Cyber-Dissidents - March 2008 version - (2.2 Mb - 80 pages .pdf) by Reporters Without Borders

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Bichard Inquiry delving into criminal records and "soft intelligence" policies highlighted by the Soham murders. (taken offline by the Home Office)

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CommentOnThis.com - comments and links to each paragraph of the Home Office's "Strategic Action Plan for the National Identity Scheme".

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World's First Fascist Democracy - blog with link to a Google map - "This map is an attempt to take a UK wide, geographical view, of both the public and the personal effect of State sponsored fear and distrust as seen through the twisted technological lens of petty officials and would be bureaucrats nationwide."

Blogoir - Charles Crawford - former UK Ambassodor to Poland etc.

No CCTV - The Campaign against CCTV

Barcode Nation - keeping two eyes on the database state.

Lords of the Blog - group blog by half a dozen or so Peers sitting in the House of Lords.

notes from the ubiquitous surveillance society - blog by Dr. David Murakami Wood, editor of the online academic journal Surveillance and Society

Justin Wylie's political blog

Panopticon blog - by Timothy Pitt-Payne and Anya Proops. Timothy Pitt-Payne is probably the leading legal expert on the UK's Freedom of Information Act law, often appearing on behlaf of the Information Commissioner's Office at the Information Tribunal.

Armed and Dangerous - Sex, software, politics, and firearms. Life’s simple pleasures… - by Open Source Software advocate Eric S. Raymond.

Georgetown Security Law Brief - group blog by the Georgetown Law Center on National Security and the Law , at Georgtown University, Washington D.C, USA.

Big Brother Watch - well connected with the mainstream media, this is a campaign blog by the TaxPayersAlliance, which thankfully does not seem to have spawned Yet Another Campaign Organisation as many Civil Liberties groups had feared.

Spy on Moseley - "Sparkbrook, Springfield, Washwood Heath and Bordesley Green. An MI5 Intelligence-gathering operation to spy on Muslim communities in Birmingham is taking liberties in every sense" - about 150 ANPR CCTV cameras funded by Home Office via the secretive Terrorism and Allied Matters (TAM) section of ACPO.

FitWatch blog - keeps an eye on the activities of some of the controversial Police Forward Intelligence Teams, who supposedly only target "known troublemakers" for photo and video surveillance, at otherwise legal, peaceful protests and demonstrations.

Other Links

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UK Legislation

The United Kingdom suffers from tens of thousands of pages of complicated criminal laws, and thousands of new, often unenforceable criminal offences, which have been created as a "Pretend to be Seen to Be Doing Something" response to tabloid media hype and hysteria, and political social engineering dogmas. These overbroad, catch-all laws, which remove the scope for any judicial appeals process, have been rubber stamped, often without being read, let alone properly understood, by Members of Parliament.

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Campaign Button Links

Watching Them, Watching Us - UK Public CCTV Surveillance Regulation Campaign
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NO2ID Campaign - cross party opposition to the NuLabour Compulsory Biometric ID Card and National Identity Register centralised database.

Gary McKinnon is facing extradition to the USA under the controversial Extradition Act 2003, without any prima facie evidence or charges brought against him in a UK court. Try him here in the UK, under UK law.
Gary McKinnon is facing extradition to the USA under the controversial Extradition Act 2003, without any prima facie evidence or charges brought against him in a UK court. Try him here in the UK, under UK law.

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FreeFarid.com - Kafkaesque extradition of Farid Hilali under the European Arrest Warrant to Spain

Peaceful resistance to the curtailment of our rights to Free Assembly and Free Speech in the SOCPA Designated Area around Parliament Square and beyond
Parliament Protest blog - resistance to the Designated Area restricting peaceful demonstrations or lobbying in the vicinity of Parliament.

Petition to the European Commission and European Parliament against their vague Data Retention plans
Data Retention is No Solution - Petition to the European Commission and European Parliament against their vague Data Retention plans.

Save Parliament: Legislative and Regulatory Reform Bill (and other issues)
Save Parliament - Legislative and Regulatory Reform Bill (and other issues)

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Open Rights Group

The Big Opt Out Campaign - opt out of having your NHS Care Record medical records and personal details stored insecurely on a massive national centralised database.

Tor - the onion routing network
Tor - the onion routing network - "Tor aims to defend against traffic analysis, a form of network surveillance that threatens personal anonymity and privacy, confidential business activities and relationships, and state security. Communications are bounced around a distributed network of servers called onion routers, protecting you from websites that build profiles of your interests, local eavesdroppers that read your data or learn what sites you visit, and even the onion routers themselves."

Tor - the onion routing network
Anonymous Blogging with Wordpress and Tor - useful Guide published by Global Voices Advocacy with step by step software configuration screenshots (updated March 10th 2009).

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Amnesty International's irrepressible.info campaign

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BlogSafer - wiki with multilingual guides to anonymous blogging

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NGO in a box - Security Edition privacy and security software tools

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Home Office Watch blog, "a single repository of all the shambolic errors and mistakes made by the British Home Office compiled from Parliamentary Questions, news reports, and tip-offs by the Liberal Democrat Home Affairs team."

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Reporters Without Borders - Reporters Sans Frontières - campaign for journalists 'and bloggers' freedom in repressive countries and war zones.

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Committee to Protect Bloggers - "devoted to the protection of bloggers worldwide with a focus on highlighting the plight of bloggers threatened and imprisoned by their government."

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Icelanders are NOT terrorists ! - despite Gordon Brown and Alistair Darling's use of anti-terrorism legislation to seize the assets of Icelandic banks.

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No CCTV - The Campaign Against CCTV

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I'm a Photographer Not a Terrorist !

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Power 2010 cross party, political reform campaign

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Cracking the Black Box - "aims to expose technology that is being used in inappropriate ways. We hope to bring together the insights of experts and whistleblowers to shine a light into the dark recesses of systems that are responsible for causing many of the privacy problems faced by millions of people."

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Open Rights Group - Petition against the renewal of the Interception Modernisation Programme

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WhistleblowersUK.org - Fighting for justice for whistleblowers