Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 27
Alongside this debate on extending access has been the discussion over the length of retention of
communications data. The 2001 Anti-Terrorism Crime and Security Act allow the Home Secretary
to require service providers to retain communications data on grounds of national security or the
prevention of crime 48 . This potentially meant that a range of additional bodies would be able to draw
on a considerable body of information on an individual.
Data retention of this type raises issues of fundamental principle over what is a proportionate approach
to protection of national security or prevention of crime. It involves the creation of a pool of personal
data about millions of innocent people – against the majority of whom there is not the faintest suspicion
of unlawful activity. The longer such data is held the greater concern over the proportionality of
retention. The Government does not have carte blanche in determining the length of retention. All
European Community (EC) member states are under an obligation to comply with a European Directive
on the retention of communications data 49 . This directive allows considerable scope for member states
to retain data for a period between six and 24 months. There has been a voluntary code of retention
for communications service providers in operation for some time already. This allows for retention of 12
months. The Home Office recently published a consultation on implementation of the directive 50 . Its
recommendation was that data retention remains at the current 12 month retention adopted in the
voluntary code. The consultation conceded that a case for extension had not been made out and that
to lengthen the period data is held would be disproportionate. This positive approach demonstrates
that an appreciation of privacy and human rights concerns can and does guide Home Office
consideration and could bode well for future debate over the use of RIPA powers.
Certified Warrants
There is a further level of detail relevant to the interception of communications (although not to the
accessing of communications data) that should be examined before consideration of other forms of
targeted surveillance permitted under RIPA.
The warranting process for intercepted communications described so far mainly covers warrants
naming either one person or a single set of premises as the subject of interception 51 . There is
however a far broader interception regime also permitted. These are covered by Section 8 (4) RIPA
which allows the Secretary of State to certify a general warrant in respect of external
communications (i.e. those sent or received outside the U.K). This warrant is limited only in that the
Secretary of State is required to be satisfied that the warrant is necessary in the interests of national
security, preventing or detecting crime or to safeguard the economic wellbeing of the country. The
trawling of communications clearly permissible under the Section 8 (4) certified warranting process
is in stark contrast to that permitted for internal communications.
The use of mass interception through certified warranting for external communications is not a new
concept and was catered for in IOCA. The purpose was to allow Government Communication
48
The voluntary code of practice under this Act states that 12 months should be the maximum length of
retention of data. Also an agreed EU framework document permits retention for up to 12 months.
49
Directive 2006/24/EC
50
http://www.homeoffice.gov.uk/documents/cons-eur-dir-comm.pdfview=Binary
Consultation closed June 2007.
51
Section 8(1) RIPA