Government’s proposals on the retention of data – The Times 11 April
Here is your pub quiz question for the day.
You live in a country where the security services have unfettered right to know exactly who you spoke to on the phone and when and for how long, over the last year. Where would you be? China? Russia? Egypt? Some South American dictatorship? No, you would be in Britain.
In 2005, the last Government used its presidency of the EU to push through a directive requiring domestic telephone and internet providers to retain the full records of who contacted whom for a year and provide the Government with access to them on demand. This legislation was opposed by European Liberals and has had a very rough ride in other European countries. Sweden has yet to enact it and the courts in Germany, Romania and the Czech Republic have ruled it unconstitutional.
The coalition Government promised to halt this move towards greater surveillance. Yet now they seem to propose a massive extension to it.
Liberals accept, subject to safeguards decided by Parliament, that the Government has a right to monitor the private communications of its citizens where this is necessary for national security and in the pursuit of serious crime. And that these powers should keep pace with the development of communications.
But there must be safeguards, too.
Any extension of these powers should be strictly proportionate to the threat. That’s why we opposed the Labour Government when it tried to establish a central database in 2008.
Any exercise of these powers must be subject to a warrant and strictly targeted at individuals, where good grounds exist for believing that they are involved in serious law breaking or a threat to the security of the State. We have always resisted a “fishing trip” approach by the security services, where they seek the right to gather information on innocent citizens merely on the grounds that there may be among them, some who are committing serious crime.
The right to monitor private communications is thus justified only where it is specific, evidence based and applied to an individual.
It cannot be justified by treating us as a nation of suspects. It cannot be justified on the grounds that the information gathered might be useful to the State at some unspecified date in the future.
The Government’s new proposals to extend the retention of email, social media, web-sites and internet phone records breach these basic principles; they are disproportionate and they seek a generalised extension of State monitoring which apply to everyone, rather than to individuals.
The Government claims that it will have unfettered access only to “data” (i.e sender, recipient, time and duration) rather than content, so this does not constitute “a communications interception”. That is sophistry.
As free citizens we have a right to talk to whom we wish, when we wish and wherever we wish without the State knowing about it, unless there is good cause for it to do so. It is not just the content of our communication that is private. It is the fact that it occurred at all, when and for how long. An email is not just the text. It is also the sender, the time it is sent and the person it is sent to.
The “content” cannot be separated from the context.
It is for this reason that it is difficult to see how these proposals do not infringe to the Coalition agreement, which promised: “We will end the storage of email and internet records without good reason.”
The danger here is not diminished because there will be no centralised State database of the sort Labour proposed. That is largely an irrelevance. These proposals bring into existence a series of statutorily required databases held by others, in a form dictated by the State, to which the State will have unfettered access.
Nor are these dangers dealt with by hedging them around with safeguards. Or by making them subject to oversight by the Interception of Communications Commissioner. The principles being infringed here are much too big to be protected by safeguards and oversight.
Of course the security services have good reason to argue otherwise. It is their job to seek the best weapons they can to do the critical job we ask of them, especially in an Olympic year. We look to them to safeguard our national security. But we look to the Government to safeguard our liberties.
If these proposals were to allow our security services to put a case to ministers (or a judge) to extend the holding of intercept information on an individual or even many individuals, I would have no quibble with them. That would be specific, evidence based and subject to external approval. But this is not, it appears what is being suggested.
We should update our current interception laws to deal with the new ways criminals and terrorists communicate. But the need to have new laws should not mean parting company with old principles.
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