Overlooked - Liberty

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<strong>Overlooked</strong>: 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
28 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain Headquarters (GCHQ) to collect large quantities of external communication in order to allow computers to trawl for keywords that might indicate potential terrorist activity (such as ‘bomb’ or ‘Semtex’). However, the nature of mass modern communication processes makes it impossible to separate internal and external communications which will often be carried though the same cable. This means that internal communications could be subject to the same type of trawling exercises used for external communications. Because of this Section 16 RIPA contains extra safeguards relating to certified warrants. At face value the extra safeguards seem an appropriate mechanism for ensuring that certified warrants do not allow trawling exercises through internal communications. Section 16 (1) provides that any material subject to a certified warrant can only be examined if a) it has been certified as necessary to be examined for national security, crime detection or prevention, or economic wellbeing purposes b) the purpose of examination is not the identification of material contained in communications sent by, or intended for someone in the British Isles and c) the material has not been selected for examination by reference to such a person. However this safeguard is not as robust as it first appears. Section 16 (3) provides an exemption from requirements b) & c) in the paragraph above if the Secretary of State certifies that examination is necessary by reference to a particular individual. This certification can last for up to 6 months 52 . RIPA is a notoriously complex piece of legislation and the sections relating to certified warrants are particularly Byzantine. However, the combination of Section 8 (4) certification coupled with Section 16 (3) exemption seems to create the framework for an interception regime covering communications within the UK without the need for specificity required for standard internal interceptions. If the Secretary of State decides that the examination of mass material from within the UK by reference to a particular person or persons is necessary for terrorism, crime prevention/detection, or economic well-being purposes then (s)he can authorise the same sort of automated mass sifting carried out by GCHQ relating to external communications. The framework set out in RIPA is confusing and creates grey areas. In particular it is difficult to establish what parameters might be set to identify particular individuals from the mass of information available for examination. It goes without saying that the operational use of certified warranting is not subject to significant scrutiny. The current regulatory regime on interception of communications under RIPA gives little insight into the extent to which internal communications within the UK might be subject to trawling expeditions previously only considered legitimate and proportionate to communications from or to other countries. Given the vagueness of the certified warranting process, it might be anticipated that the Interception of Communications Commissioner would pay particular attention to their operational use. However, this is not the case. None of the annual reports published since RIPA was passed have mention certified warranting. There might have been mention made in the confidential annexes to the reports. If so, nothing has entered the public domain. The operational use of certified warranting remains shrouded in mystery. 52 Originally three months extended to six months under Section 32 of the Terrorism Act 2006.
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Overlooked - Liberty

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