Out-Law News 2 min. read

Legal challenge against Data Retention and Investigatory Powers Act reaches High Court

A legal challenge fronted by two UK MPs against communications surveillance laws passed last year has reached the High Court.

The Data Retention and Investigatory Powers (DRIP) Act was brought into force in July 2014. It broadly requires telecoms providers to retain information about customers' communications and to disclose that information to law enforcement agencies when asked to do so.

The DRIP Act was fast-tracked through the UK parliament to replace UK regulations on data retention that implemented an EU law which was ruled to be invalid by the EU's highest court. The Court of Justice of the EU (CJEU) ruled that the EU Data Retention Directive disproportionately infringed on privacy rights enjoyed by EU citizens.

The UK government has said the speedy approval of the DRIP Act was necessary to plug potential holes in UK intelligence gathering capabilities following the CJEU's ruling.

However, shortly after the DRIP Act came into force, Conservative MP David Davis and Labour MP Tom Watson, backed by human rights campaign group Liberty, launched a legal challenge against the new law. They have questioned whether the Act respects people's privacy rights.

In a statement issued ahead of High Court hearings on 4 and 5 June, Liberty said: "Liberty will argue on Mr Davis and Mr Watson’s behalf that the Data Retention and Investigatory Powers Act 2014 (DRIPA) is incompatible with the Human Rights Act – in particular Article 8 of the European Convention on Human Rights, the right to respect for private and family life – as well as with Articles 7 and 8 of the EU Charter of Fundamental Rights, respect for private and family life and protection of personal data."

Under the DRIP Act, public telecommunications operators can be required to store 'communications data' if the home secretary considers the data retention is "necessary and proportionate" to help law enforcement agencies detect and prevent terrorism and other serious crimes or for serving other limited purposes specified under the existing Regulation of Investigatory Powers Act.

'Communications data' concerns the traffic data surrounding phone and internet communications, such as the source of a communication, its destination, date, time, duration and type. It does not relate to the content of communications.

Providers of a service which "consists in or includes facilitating the creation, management or storage of communications transmitted, or that may be transmitted, by means of such a system" are subject to the DRIP Act.

Liberty said communications data "can provide a very intimate picture of a person’s life" and that the DRIP Act "is subject to an extremely lax access regime" which allows communications data to be accessed by public authorities and not just by intelligence agencies. It said telecoms companies can be ordered to retain data for 12 months even if there is "no link with the prevention or detection of serious crime".

"Liberty does not dispute the role of communications data in solving and preventing crime, but does not believe that justifies the costly and lengthy mass retention of records of those who are not involved in such investigations," the group said. "Liberty is calling for prior judicial authorisation and a requirement that data is only retained as part of investigations into serious crime and to prevent death and injury."

Last month, government plans to modernise the law relating to communications data were outlined in the Queen's speech.

The planned Investigatory Powers Bill will bring the benefit of "better equipping law enforcement and intelligence agencies to meet their key operational requirements, and addressing the gap in these agencies’ ability to build intelligence and evidence where subjects of interest, suspects and vulnerable people have communicated online", the government said at the time.

The UK government previously pulled back from plans to introduce a new Communications Data Bill following criticisms from technology companies and privacy campaigners.

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