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Published: Thu, December 22, 2016
World | By Tasha Manning

Snooper's charter is ruled unlawful by EU


In particular, the judgment raises concerns about the viability of the mandatory communications data retention powers (Part 4 of the Investigatory Powers Act), which are carried over from DRIPA.

Judges ruled authorities should not be allowed to authorise their own access to data, and independent courts or bodies should approve or deny requests. The "prior review' process should apply "except in cases of validly established urgency", it said".

Instead, the court said only "fighting serious crime" such as terrorism could justify such state interference.

The Telegraph reports the ruling means the government may have to radically cut the legislation's reach.

The ruling does not cover the 2016 United Kingdom law, which requires telecoms companies to store details of the websites visited by users for up to 12 months.

The case was originally brought against the Data Retention and Investgatory Powers Act (Dripa), however, the updated surveillance laws in the Investigatory Powers Bill contain similar powers.

But the darker underbelly of it - how tackling crime can violate the privacy of ordinary, law-abiding individuals - was brought to stark light in 2013 when former government worker Edward Snowden detailed just how these surveillance programs worked. It also requires telecom and tech companies to collect and store a year's worth of user data.

In an accompanying DRIPA "factsheet", the government noted that the European Union "does not have responsibility for national security so the judgment should not affect counter-terrorism investigations at all". A range of other privacy safeguards, including a special privacy clause, and oversight mechanisms, are built in to the new legislation. "The Government must now urgently fix the Investigatory Powers Act, so that access to our data is properly authorised".

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The legislation has since been replaced by the Investigatory Powers Act, which came into force this autumn.

DRIPA was introduced into United Kingdom law in 2014 after being fast-tracked through the United Kingdom parliament.

"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", a spokesman said.

The ruling by the ECJ came after the United Kingdom government had referred the case to its authority, having already lost the same argument in the UK's high court.

Those who say that ministers should just ignore the Luxembourg court ruling because Britain will soon be out of the European Union will also be disappointed.

It will now be for the Court of Appeal to determine the case.

"The Court states that, 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". Once that exit actually happens (if it does!) the legal status of the court's ruling will again be thrown into question.

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