The controversial bill that gave the government extra powers to trawl through your internet history has just been termed illegal by the European Court of Justice. The EU’s highest court has ruled in a judgment that ‘general and indiscriminate’ retention of emails and electronic communications by the government is against the law.
If you remember under the Investigatory Powers Bill, any information stored in your last 12 months of browsing history – known as internet connection records (ICR) – can be checked by officers, along with data stored on your computers and smartphones.
The data can be used to check things like whether you browse specific websites, and where you do so and was due to come into force by the end of this year.
Using things like Google Incognito would have made no difference either.
The only time it is justified is to intercept the traffic and location data in order to combat serious crime, it said.
Obviously, if and when the UK Brexits the ECJ’s authority over the UK will cease, meaning it will no longer have authority of British courts.
The finding came in response to a legal challenge brought by the Brexit secretary, David Davis, when he was a backbench MP, and Tom Watson, Labour’s deputy leader.
A Home Office spokesperson said: ‘We are disappointed with the judgment from the European court of justice and will be considering its potential implications.
‘It will now be for the court of appeal to determine the case.
‘The government will be putting forward robust arguments to the court of appeal about the strength of our existing regime for communications data retention and access.
‘Given the importance of communications data to preventing and detecting crime, we will ensure plans are in place so that the police and other public authorities can continue to acquire such data in a way that is consistent with EU law and our obligation to protect the public.’
‘With respect to retention, the retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained.
‘The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious. The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.
‘Legislation prescribing a general and indiscriminate retention of data does not require there to be any relationship between the data which must be retained and a threat to public security and is not restricted to, inter alia, providing for retention of data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved in a serious crime.
‘Such national legislation therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the charter.’
By: Toby Meyjes