PRIVACY INTERNATIONAL
MEDIA RELEASE
LEGAL BLOW TO UK GOVERNMENT’S “SNOOPERS CHARTER”
Retention of phone and Internet records breaches European human rights law
15th October 2003
EMBARGOED UNTIL 11 PM, WEDNESDAY 15th OCTOBER 2003
Details of a legal Opinion announced today has dealt a blow to Home Office plans to snoop on the phone and Internet activity of the UK population.
The Opinion, which relates to an EU framework directive on the retention of communications data, has profound ramifications for ten EU states that have implemented, or are planning to implement, measures to place communications users under blanket surveillance. The UK is in the early stages of implementing such measures.
A series of regulations (Statutory Instruments) recently laid before the UK Parliament intends to create a legal basis for comprehensive surveillance of communications. The regulations will allow an extensive list of public authorities access to records of individuals’ telephone and Internet usage. This “communications data” — phone numbers and e-mail addresses contacted, web sites visited, locations of mobile phones, etc. – will be available to government without any judicial oversight. Not only does government want access to this information, but it also intends to oblige companies to keep personal data just in case it may be useful.
The twenty-page legal Opinion was commissioned by Privacy International and was provided by the international law firm Covington & Burling. It has unequivocally concluded that such plans would be unlawful.
The Opinion states: “The data retention regime envisaged by the (EU) Framework Decision, and now appearing in various forms at the Member State level, is unlawful.
“Article 8 of the European Convention on Human Rights (ECHR) guarantees every individual the right to respect for his or her private life, subject only to narrow exceptions where government action is imperative. The Framework Decision and national laws similar to it would interfere with this right, by requiring the accumulation of large amounts of information bearing on individuals’ private activities. This interference with the privacy rights of every user of European-based communications services cannot be justified under the limited exceptions envisaged by Article 8 because it is neither consistent with the rule of law nor necessary in a democratic society.
The Opinion continues: “The indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behaviour to avoid unwanted intrusions. Moreover, the data retention requirement would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society.”
The Opinion details a lengthy history of case law that clearly rules against the use of indiscriminate surveillance of communications.
Privacy International today warned that it intends to pursue test cases in at least two EU countries where mandatory retention has been implemented. It is currently seeking litigants from within the communications industry.
The Opinion – along with the substance of the government’s proposals – will be debated at a public meeting hosted by the London School of Economics on Wednesday October 22nd (see http://www.privacyinternational.org/conference/sfs7/ for details and registration information). The meeting will involve speakers from the Home Office, the Department of Constitutional Affairs, the Department of Works & Pensions, Local authorities and ACPO, together with industry representatives and parliamentarians.
In two parallel actions, Privacy International today lodged a complaint with the Information Commissioner alleging that the government’s regulations and voluntary code on retention breaches at least three of the core Data Protection principles enshrined in the Data Protection Act. The complaint requests the Commissioner to take urgent action to alert the appropriate Parliamentary committees, and to support a referral to the Parliamentary Joint Committee on Human Rights Committee.
The complaint argues that the blanket retention of communications data breaches the principle of proportionality, that the practice flouts the specificity principle, and that the existence of a voluntary code for communications providers takes no account of the consent principle.
Privacy International has today also lodged an Open Government request for disclosure of the government’s legal advice relating to the regulations before the Parliament.
Simon Davies, director of Privacy International, said: “This is an important legal analysis. It clearly exposes the government’s intention not only to snoop unnecessarily on innocent people, but also to force unwilling companies to be complicit in an unprecedented and disproportionate surveillance regime”.
“The government’s plans are illegal. We are calling on all communications providers to support their customers’ rights by ignoring the government’s proposals”.
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Simon Davies of Privacy International can be reached for comment on 07958 466 552 (from the UK) or on (+44) 7958 466 552 (from outside the UK). Email simon@privacy.org
Copies of all documents mentioned in this release can be obtained by contacting Simon Davies.
Privacy International (PI) (www.privacyinternational.org) is a human rights group formed in 1990 as a watchdog on surveillance by governments and corporations. PI is based in London, and has an office in Washington, D.C. Together with members in 40 countries, PI has conducted campaigns throughout the world on issues ranging from wiretapping and national security activities, to ID cards, video surveillance, data matching, police information systems, and medical privacy, and works with a wide range of parliamentary and inter-governmental organisations such as the European Parliament, the House of Lords and UNESCO.
