UK; Data retention and access consultation farce
01 March 2003
In March the Home Office issued two consultation papers, one on the retention of communications data, the other on access to communications data. The deadline for responses is 3 June. The latter came about after the government tried to rush through a Statutory Order giving over 1,039 public authorities the right to request communications data - after widespread objections by civil society this was withdrawn on 18 June 2002.
The former, on data retention, dates from the passing of the Anti-Terrorism, Crime and Security Act in December 2001. Section 103 says that the Home Secretary has to issue a consultation paper before the government brings in a voluntary Code of Practice by statutory instrument. It has taken the Home Secretary 16 months to issue the consultation paper. The ATCS Act says that the Home Secretary can order mandatory data retention if the voluntary scheme does not work (Section 104). However, Section 105 limits this power to two years from the passing of the Act which will be 13 December 2003 - the Code is unlikely to be operative by this date so the Home Secretary will have to put through another statutory instrument extending his powers for another two years (Section 105.4).
This begs the obvious questions: In December 2001 the ATCS Act was rushed through parliament on the grounds that the new powers were urgently needed to combat "terrorism" - does this mean that the security, intelligence and police agencies do not have access to communication data to combat "terrorism" or does it mean they already have all the powers they need? Does excessive delay not tell us that data retention is more to do with combating crime in general than terrorism?
The retention of data - what the Act says
Under the Act the Home Secretary can issue a code of practice (voluntary or mandatory) as is necessary:
(a) for the purpose of safeguarding national security: or
(b) for the purpose of prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security" (Section 102.3, emphasis added)
The Act is thus unequivocal, the Home Secretary can lay down a Code for the retention of communications data which is directly or indirectly related to "national security".
What the government is trying to do is to extend this legal definition to cover crime in general and in the case of some agencies to those who deal with health and safety, trading standards and local authority agencies.
Home Office officials try to argue that the Home Secretary made it clear during the debate on the ATCS Act that it would apply to crime in general. What the Home Secretary may have said during the debate has no bearing on the legal situation, it is what the Act says that counts. Moreover, if every statement by every government Minister during the passage of legislation had legal standing the courts would be in chaos.
Whatever the spin and glossy consultation document says the government is assuming that the telecommunications industry will cooperate and that the unlawful practice of accessing communications data for law enforcement in general will become the norm.
Consultation - data retention
The consultation paper on data retention under the ATCS Act admits that powers are only available to retain data for the purpose of "national security" and related crimes but then refers to crime in general throughout. It states that the "Home Office does not consider" that data retained for the purposes of national security "and not for any other reason, should prevent the police or other public authorities having access to that data when they can demonstrate a proportionate need for it" - ignoring the fact that "proportionate" is only relevant where an underlying power exists in the first place.
The Information Commissioner (the re-named Data Protection Commissioner) who was consulted sits on the fence by saying that in relation to data protection (as distinct from the underlying law) ac