MP calls for limit on UK surveillance powers as EU test case opens

The UK government is “treating the entire nation as suspects” by ignoring safeguards on retaining and accessing personal communications data, according to Conservative MP David Davis.

Speaking before the opening of a test case at the European court of justice (ECJ), the former home affairs spokesman called for improved protections to prevent state abuses through bulk interception of private emails and online exchanges.

Davis and the Labour MP and deputy leader Tom Watson have jointly challenged the legality of the government’s Data Retention and Investigatory Powers Act 2014 (Dripa).

The case before 15 European judges in Luxembourg comes in the middle of the UK’s EU referendum campaign and is likely to have a significant impact on the controversial investigatory powers bill now before parliament.

It also follows the jihadi atrocities in Paris and Brussels, which have reinforced political demands for bulk interception of emails and phone calls to be expanded to help catch Islamic State gunmen operating on the continent.

At the opening of the test case at the ECJ, lawyers for the UK government said intercepted communications had been at the heart of every terrorist case investigated by police and the security services in recent years.

Dan Beard QC, presenting the UK government case, told the court: “We have multiple examples of communications data being critical in securing convictions, said It has also been used to prove people innocent and to find missing victims.

“When I make a call … I’m billed and the telecoms company holds the communications data. My call has a digital footprint and it persists in the digital sand for some time.

“The measures at the heart of this [case] are, at most, simply extending the time of retention. They hold back the tide and stop the footprints being washed away … Telecoms companies are not being asked to get information they would otherwise not have. It’s not concerned with the content of any communications data.

“[Data retention] is not a wholesale sweep up. [Investigators] have to obtain specific permission to access communications data. There’s a strict process of approval. Using communications data can identify contacts between people and to some extent identify locations. That’s why the data is valuable.

“This is not about extinguishing privacy rights. It’s [about] striking a balance and each member state does that differently.”

Revelations by the US whistleblower Edward Snowden have meanwhile shown that intelligence agencies have the capability of carrying out widespread surveillance and hacking into suspects’ computers.

Fifteen EU states have intervened in the case, many seeking to make significant changes to the impact of a previous landmark judgment, known as Digital Rights Ireland, which establishes safeguards for retention of communications data. Privacy groups and the two British MPs are urging the court to uphold existing safeguards established by the case.

The high court in London has already ruled that the powers in Dripa are inconsistent with European Union law, and as a result those powers are due to expire at the end of this year. The court of appeal is asking the ECJ to clarify the impact of the Digital Rights Ireland decision.

Dinah Rose QC, representing Watson and Davis, told the hearing: “It’s no part of our case to challenge or dispute the importance of retaining communications data in the fight against terror and serious crime. Our point is simply that protecting our democratic values is also important in resisting terror.

“Interception of communications is interference with democratic rights. If a state considers that interference to be necessary then it’s essential for it to put in place proper safeguards. The UK does not provide proper safeguards and it’s unlawful for that reason.

“The UK does not dispute that the public interest aims [of the EU’s e-privacy directive] can’t be met by their safeguards. The UK position is that it’s simply under no obligation to implement them.

“The fact that so many member states are seeking to dilute the standards shows the necessity of the [ECJ] taking a clear line in defining what are minimum standards. Individuals whose data has been accessed have no right to be informed even if that access was unlawful. The UK permits an immigration inspector to access an asylum seekers’ [data] even if they are not suspected of any crime, or those taking part in demonstrations. There’s no seriousness threshold.”
Jessica Simor, a barrister representing the Open Rights Group and Privacy International, told the 15 European judges at the ECJ hearing: “The number of states seeking to persuade you to reverse your position in Digital Rights Ireland would amount to your court judicially amending rules adopted by the EU parliament. Wholesale, mass retention of data is not permissible under the EU’s e-privacy directive.”

Earlier Davis, a Eurosceptic who is attending the hearing in Luxembourg, explained that although he supports a British bill of rights to repatriate judicial supremacy, he accepts that for now the ECJ decision will be decisive.

He said: “There’s always going to be a supreme court of some sort. At the moment this [the ECJ] is it. When we are out [of the EU], we will have a supreme court with a British bill of rights.”

Dripa, Davis said, had been pushed through parliament in one day, with no briefing and no time to discuss it. “It was an abuse of democracy. Sometimes if parliament does not [stop it], someone else has to do so.

Some bulk retention of detention is necessary, Davis acknowledged. “If it is destroyed, you can’t follow up. But retention of data can still be dangerous. It can be misused by states. Large quantities of data attract criminals and fraudsters. Limited storing is necessary.

“The British government is retaining far more than is necessary and treating the entire nation as suspects and that’s not consistent with British laws.”

Davis said he suspected the UK government would try to get the Dripa case heard in Luxembourg before the investigatory powers bill went through all its stages so that it did not need to be revised at a later date to ensure it is consistent with EU regulations.

The 15 EU states party to the case, , which also relates to a dispute involving Swedish telecoms company, are defending the principle of the mass retention of data.

“Wholesale data retention is not a problem if it’s compensated for by safeguards governing access to the data,” a lawyer for the Czech government argued on Tuesday. “If mass retention was prohibited, then states would be excluded from a golden opportunity to prosecute for a considerable quantity of criminal activity.”

The Danish government’s representative declared: “It’s impossible to know beforehand which data might be relevant in the future for solving criminal cases. Data retention provides investigators with the benefit of hindsight. To limit data retention, as described by the Digital Rights Ireland case, would be impractical if the aim is to prevent or detect crime.”

Anna Falk, a lawyer representing the Swedish government, said: “The feeling of unease that retention of data already arouses in individuals is largely based on a fear of what the authorities [might do with it]. There has to be … proportionate rules on the data retention.

“It’s not possible to meet the very important interest in combatting crime in any other way than through a general retention of data.”