Data retention emergency was a fake

The government appears to have a habit of passing anti-terrorism legislation in an emergency. Human rights lobby Liberty complained outside the High Court this month that the Home Office fabricated an emergency to pass a dubious snooping law. For Liberty, this was just a megaphone slur to catch people’s attention. But the emergency was indeed a fake.

The emergency had stopped MPs scrutinizing the snooping law when home secretary Theresa May pressed them to approve it last summer. This Data Retention and Investigatory Powers (DRIP) Act had been permissible under EU law since 2006. But the European Court of Justice had decided last April it was impermissible after all. It should have been a formality for May to recast the same powers under UK law. The European Court hadn’t been opposed to data retention per se. It had just called foul because the UK and other countries had drafted the EU template in contempt of human rights.

The home secretary had no cause for an emergency on the face of it. The national data retention regimes had not drawn their powers directly from the EU law – the Data Retention Directive. The Directive merely obliged them to create a regime in the mould it gave them. Now the Directive law had been revoked, national legislation such as the UK’s Data Retention Act still stood. Its powers were still in force.

Two things had changed though. First, the European court said the Directive was invalid for its lack of restraint. It allowed police to search records of people’s communications with less concern for people’s privacy than human rights law demanded. The home secretary was trying to recast the retention law without imposing this restraint. So she might have been wise to rush it through. That lack of restraint was what Liberty was challenging at the High Court.

The other change was the reason May gave for passing her legislation in an emergency. It had been three months since the European court had revoked the Data Retention Directive when May called her emergency. Now May’s office was saying it needed emergency powers because there was a danger the UK would lose them over the summer while everyone was on holiday.

Parliament was being asked to restate a discredited law without proper scrutiny, just in case that law’s authority evaporated in the six weeks of July and August when parliament was in recess. It had been fine for three months. What was the rush now? May’s office couldn’t say why. It insisted May’s emergency statement contained all their was to say of its justification.

May’s reason was “growing uncertainty among communication service providers about our interception powers”. She couldn’t provide details, she said, because it was a state secret privy only to members of the security services and certain members of parliament who had been briefed behind doors.

Internet industry opposition had stopped the UK and other EU countries imposing data retention regimes in the early noughties when they first started trying to do it. It had taken an EU-wide law to get it implemented at all. Data retention relied on telecoms providers storing records of millions of customers for up to two years at great cost just in case police wanted to search them. Any country would put its own industry at a disadvantage unless everyone else’s telcos were obliged to do the same. That was the theory.

Now the EU law had been undone, May implied the telcos were trying to avoid carrying the cost of retention if they could.

“Communication service providers that serve the UK but are based overseas need legal clarity about what we can access,” May told parliament.

“It is clear that we have reached a dangerous tipping point. We need to make sure that major communication service providers co-operate with the UK’s security and intelligence and law enforcement agencies when they need access to suspects’ communications,” she said.

With the pan-European law now revoked, telcos might revive their old opposition to data retention. They wouldn’t retain comms data for customers in other countries if the law didn’t demand it. It was even possible to imagine people putting their comms through a non-UK telco to avoid the state keeping records of their activities.

That might be disastrous for UK telcos. It would give them motivation to oppose retention at home as well. And they now had a legal basis for opposing it. The ECJ ruling set a precedent a national court would follow in any case brought against a national data retention regime. The ECJ found numerous ways the EU Retention Directive was contemptuous of human rights, and the UK had not corrected all of them when it transposed the powers into national law. Since UK police were doing about half a million searches on peoples comms records every year, it looked that way too.

This seemed to explain May’s emergency. Her legislation would stop the regime falling apart by requiring overseas telcos operating in the UK to co-operate with police requests to retain and search their customers’ comms records.

But it didn’t justify her emergency. If the law was invalid then May had no cause to restate it without correcting the fault that invalidated it. Her police were operating illegally. She hitched their procedures up under cover of an emergency until a more permanent fix could be found.

Her justification assumed police should continue using illegitimate powers to search people’s comms records. The emergency was justified to protect them against legal challenge. But the legislation was illegitimate. Restating it in an emergency was therefore unjustifiable. The emergency was fake.

That is unless you believe the police should be trusted to use illegal measures to investigate crimes because they can be trusted not to abuse their power when operating beyond the reach of the law; that there are people so horrible that the police should use all means necessary to catch them; and so, as a friendly bobby might excuse you a speeding ticket in extenuating circumstances, you might excuse an entire national police force the routine use of illegal powers to search people’s comms records. That’s what parliament did.