The UK discusses data retention again

Rather bizarrely, the UK appears to be taking a more diligent approach to the application of EU law on data retention than the European Commission. While the Commission sits on its hands as individual Member States adopt increasingly outlandish and illegal data retention proposals – such as a new Italian law that imposes data retention that is 400% longer than the maximum period established by the Directive ruled invalid by the Court of Justice of the European Union (CJEU) – the UK is taking steps to at least consider respecting existing legal frameworks.

To that end, the UK’s High Court held a hearing to decide whether to apply the CJEU’s judgment against data retention to the now-defunct Data Retention and Regulatory Powers Act. This is significant because it would indicate how the UK should apply the judgment to its newer data retention provisions in the Investigatory Powers Act, creating some degree of legal oversight and judicial assessment of its provisions.

Meanwhile, the government released a consultation into changes to data retention, which would include a new independent authorisation body, overseen by Judicial Commissioners. The government refused to make any changes to notification of people investigated, nor on the extent of data retention. It argued in the High Court that the criticisms of retention mentioned in the Watson / Tele 2 judgment only applied to Sweden, and not to the UK.

The Swedish police, meanwhile – despite the fact that Sweden was unable (like all other EU Member States) to make a compelling case for mandatory data retention in front of the Court – is arguing that the ruling should not apply to Sweden either because, “the world has changed” since last year, indicating that the Swedish police appears not to know how law works. The European Commission, meanwhile, previously told EDRi that it does not really understand what the words in the first European Court ruling against data retention actually mean, which prevents it from ensuring that the primary law of the EU is actually respected.

Davis MP v Secretary of State for the Home Department
https://wiki.openrightsgroup.org/wiki/Davis_MP_v_Secretary_of_State_for_the_Home_Department

Data Retention and Investigatory Powers Act 2014
https://wiki.openrightsgroup.org/wiki/Data_Retention_and_Investigatory_Powers_Act_2014

Investigatory Powers Act 2016
https://wiki.openrightsgroup.org/wiki/Investigatory_Powers_Act_2016

Open consultation: Investigatory Powers Act 2016
https://www.gov.uk/government/consultations/investigatory-powers-act-2016

Limiting data retention would have serious consequences for Swedish security
http://www.sakerhetspolisen.se/en/swedish-security-service/about-us/current-events/news/2017-10-13-limiting-data-retention-would-have-serious-consequences-for-swedish-security.html

European Commission & Data Retention – a faulty basis for decision-making*?
https://edri.org/data_retention_decision_making/

(Contribution by Jim Killock, EDRi member Open Rights Group, United Kingdom)