UK: Government trying to slip through "voluntary" data retention rejected by consultation process

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- government leaves the communications industry open to legal challenge if they retain traffic data for the purpose of "national security" and then pass it over for other purposes, for example, for crime, public order or taxation

Tony Bunyan, Statewatch editor, comments:
"The government's consultation process showed that nearly everyone, except the law enforcements agencies, are against the plan for the voluntary retention of communications data. Industry and civil society are united in their concern that communications data retained for the purpose of "national security" under the ATCS Act 2001 cannot be legally passed over for other purposes such as crime in general and public order.

Limiting the purpose of data retention to national security was the express will of parliament. Yet the government has confirmed that hundreds of agencies which have nothing to do with national security are going to have access this data.

This is a classic case of the misuse of power and lawless decision-making"

The government has produced two sets of measures: 1) setting out which state agencies are to get access to communications data and 2) on data retention. The measures relate to two main Acts - the Regulation of Investigatory Powers Act 2000 (RIPA) and the Anti-Terrorism, Crime and Security Act 2001 (ATCS). The data to be retained, and accessed by a host of agencies, is traffic data for phone-calls, faxes, e-mails, mobile phone calls and internet usage.

The initial proposal to use powers under at ATCS 2001 to introduce data retention caused a public outcry both from the industry and civil society. In March 2003 the Home Office issued a consultation paper and the responses are summarised in a Home Office document also released on 11 September 2003.

Despite the recorded opposition (see below) by the industry, civil society and the Information Commissioner the draft Statutory Instrument - Retention of Communications Data (Code of Practice) Order 2003 - was laid before parliament on 11 September 2003 (like the other four related draft Order made public at the same time). This means that the draft code of practice entitled "Voluntary Retention of Communications Data" could come into effect after a minimum of 21 days unless sufficient MPs are able to raise the issue on the floor of the House - this is extremely rare as such a move would interrupt the business already planned by the government. The clock is already ticking but due to the parliamentary recess, for the party conference season, there are probably a little time left to raise this issue.

The responses to the consultation on data retention

Earlier this year there was a 12 week consultation process and 57 responses were received by the Home Office. The "Summary" of the responses - which is written by Home Office officials who naturally try to put the government's proposal in the best possible light - struggles to find any support at all for the proposal. On the central issue of whether communications data held for the purpose of "national security" could be used for other purposes no less that 25 of the 35 responses on this question said that:

"the approach was not appropriate or proportionate"

The "validity of data retention under the code.. provoked comments from 27 respondents" of these 22 "believed that the regime would be inappropriate".

Communications service providers (CSPs) were looking for a "clear lawful basis for data retention" and not one which left them having to decide whether it was necessary or proportionate to comply with the code. Asked whether the "industry" would comply with a voluntary code there was little comfort for the government - as it was "voluntary" some CSPs might take part and others not. This would led to a "voluntary tax" on those participating. More

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