On Tuesday, a joint Committee of Parliament will report its views on the proposed Data Retention Bill. This is the piece of legislation which, if enacted as published, would require ISPs, Google, telecoms operators and service providers etc to keep details of our use of the Internet (e.g. who we contact, when. where from etc.) are retained for up to a year. The purpose of this retention is to allow law enforcement agencies and national security agencies to dip into this information resource, whenever it is “necessary” and “proportionate”.
This draft Bill, is in effect, an extension of the current scheme under the Regulation of Investigatory Powers Act (RIPA); this is used to authorise over half a million requests for communications data are made by these agencies per year to telecommunications companies. These requests primarily focus on our use of telephones; include your access to web-sites, contacts on Facebook, Skype etc, then the scope of law enforcement intrusion into everybody’s private life has the potential to escalate significantly.
Reading the runes, I reckon the Home Office is expecting that the Committee will be critical of the Government proposals. For instance, last Wednesday, the Home Secretary told the Sun Newspaper that in the context of the Communications Data Bill:
“Criminals, terrorists and paedophiles will want MPs to vote against this bill. Victims of crime, police and the public will want them to vote for it. It’s a question of whose side you’re on” adding that “Anybody who is against this bill is putting politics before people’s lives.”
You don’t deliver tosh on these lines unless you are preparing the ground to reject what the Committee will say. That is why I am inferring a critical report.
The Information Commissioner gave written evidence; it provides a classic example of how to read between the lines. For instance, the Commissioner says “My own view is that the Parliament should determine whether the proposals contained in the draft Bill are a proportionate response to the perceived problem of communications data capability”.
Would the Commissioner say this if he thought the proposals in the Bill were proportionate? Of course not!
So with that in mind, just look at the Commissioner’s comments from his written evidence.
- “If the case is made then the practical consequences of the proposals must be identified and addressed”. Do you think the Commissioner thinks these practical consequences have been identified?
- “The compensatory safeguards which are to be put in place must have a clear and specific purpose and be effective in practice”. Do you think the Commissioner thinks these safeguards are clear, specific and effective?
- “The extent of the Information Commissioner’s role needs to be clear so that both he and the public know what outcomes or assurances his oversight will bring”. So, does the Commissioner think his role is clear?
- “There should be provision for the Information Commissioner to report on his activities”. These activities only relate to data security, data integrity and data destruction; not retention, collection and use.
- “Any extension of the Information Commissioner’s functions or increase in the volume of work undertaken by his office will need to be properly resourced”. Do you think the Commissioner has sufficient resources for his “not so clear” role?
- “There should be some form of post-legislative scrutiny stipulated on the face of the legislation”. Does the Commissioner think that the legislation should have something like a “sunset clause”?
So when the Report is published expect some more “Privacy is for Peados” headlines from the tabloids and Home Office Ministers. They will want to get their retaliation in first, before the report is published.
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One Response
Perhaps the ICO comments are intended to be vague as this avoids rocking any boats?
I feel that the ICO sometimes gets confused. I was amused to read in its response to the consulation on the draft local audit bill praise for the transparency of the NFI when it itself found against my F of I request for an Audit Guide relating to one of the NFI exercises, and contested this through to a tribunal appeal, threatening me with costs, and only gave up when, at the suggestion of the judge, I made a repeat request with which the NFI complied, in two stages, with a little more prompting from the judge.
How the same organisation which said that interpretation of a data matching exercise output had to be kept secret can at the same time tell Parliament that the initiative is transparent beats me.
And see the consent order in F of I Appeal EA/2011/0008.
I owe eternal gratitude to Mr M Frankel without whom I might have had a nervous breakdown rather than win my case, especially when they started threatening costs.
Transparency my arse.