A landmark judgment by the European Court of Justice (ECJ) could have a significant impact on the new Investigatory Powers Act, the so-called “Snoopers’ Charter”, and also provide extra safeguards for legal professional privilege.
According to campaign group Privacy International, which intervened in the case, the government may now have to rewrite “large parts” of the Act, which received Royal Assent in December 2016 after a controversial passage through Parliament. The Law Society, which intervened in the case on the issue of legal professional privilege, also welcomed the judgment.
The ECJ ruling, Home Secretary v Tom Watson & Ors (C-698/15), prohibits governments from “general and indiscriminate retention” of data except where strictly necessary for the fighting of serious crime. Privacy International says the ruling applies extra safeguards where data is retained—access by the government must be subject to prior review by a court or independent authority, and notice must be given to people affected by the retention as soon as such notice no longer jeopardises the investigation.
Law Society president Robert Bourns said the ruling “strongly supports the need to protect sensitive information such as legally privileged material, which is private information belonging to the client, and to ensure it is accessed only when absolutely necessary, with robust and independent oversight”.
The case originates from a legal challenge to the predecessor of the Investigatory Powers Act, the Data Retention and Investigatory Powers Act 2014 (DRIPA), which gave the government powers to require public telecommunications operators to retain data relating to communications (but not the content of the communications) for up to 12 months. It will now return to the Court of Appeal.
Privacy international say the ruling raises “concerns about the viability of the mandatory communications data retention powers (Pt 4 of the Investigatory Powers Act), which are carried over from DRIPA”. The campaign group also says the judgment may require the government to “increase safeguards, such as judicial authorisation and notification, for data that it keeps about us. These were shown to be lacking in DRIPA”.
Camilla Graham Wood, legal officer, Privacy International, said: “It makes clear that blanket and indiscriminate retention of our digital histories—who we interact with, when and how and where—can be a very intrusive form of surveillance that needs strict safeguards against abuse and mission creep.”
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