Europe's Highest Court Is Stalling the UK's New Surveillance Powers

At least one agency that can request internet browsing data is holding off until the European Court of Justice settles an important case.
June 22, 2017, 10:27am
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Last November, the UK passed the Investigatory Powers Act (IPA), a surveillance law that will force internet service providers to store each customer's browsing data for a year. A slew of government agencies can then request those records for their own investigations.

But legal uncertainty means that at least one body has held off some developments for the new powers, instead deciding to wait for the result from an ongoing appeal with a European Court of Justice ruling. The news could be a setback for the IPA, which was supposed to clarify and consolidate Britain's surveillance powers into a more manageable and clear piece of legislation.

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Under the IPA, police forces and security agencies will be able to apply for a warrant to access internet connection records (ICRs) held by internet service providers (ISPs). ICRs are essentially logs of connections made by your computer or phone; the data will include website visits, but also connections to chat applications, such as WhatsApp.

Other agencies that can request ICRs include the Food Standards Agency, the Gambling Commission, and parts of the National Health Service.

In response to a Freedom of Information Request from Motherboard, the Police Investigations and Review Commissioner in Scotland (PIRC), another of the agencies, said it was still in the process of creating rules for how it will use ICRs. Those rules are called Standard Operating Procedures, and are essentially guidelines for how a particular power should be used in line with regulations. PIRC added this would be done once a final determination had been made in an ongoing legal case.

Motherboard understands this refers to the European Court of Justice's December 2016 ruling that "general and indiscriminate retention" of emails and electronic communications is illegal. The case was originally brought forward by the Brexit secretary David Davis in 2014 while he was an MP, and was specifically geared towards a previous piece of UK surveillance legislation. The ruling, as this news shows, could implicate the IPA.

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The decision was referred back for an appeal, and at the time of writing, the court is yet to issue its judgement.

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The Competition and Markets Authority (CMA), in response to another Freedom of Information request, said, "The Home Office is currently developing plans for implementing the provisions of the IPA, subject to detailed consultation with industry and operational partners. The CMA anticipates implementing the relevant provisions of the IPA once the Home Office has concluded its planning, and in accordance with any guidance and policies set down by the Home Office."

Camilla Graham Wood, legal officer at UK-based activist group Privacy International, told Motherboard, "There appears to be a fair amount of work going on behind the scenes to which civil society, and it seems parliamentarians, are not privy."

So, six months after the IPA became law, the public, and it appears at least some of the agencies armed with the new powers, are not clear on how this surveillance legislation will be deployed.

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