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Information Commission lambasts anti-terror bill

Wendy McAuliffe

Sweeping measures to retain communications data for law enforcement
purposes have been branded "unnecessary" by the Office of the Information
Commissioner, along with the warning that such provisions are likely to
infringe the Human Rights Act.

Traffic data collected under the voluntary Code of Practice will include
an individual's geographical location determined through their mobile
phone; the sender and recipient information from emails; a complete log
of a person's Internet sessions, including their IP address; and the
address of all Web sites they have visited. The intelligence would
provide a complete map of a person's private life, according to the
Foundation for Information Policy Research (FIPR) think tank.

The Home Office has included a provision within the Anti-Terrorism, Crime
and Security Bill for communications data to be retained by service
providers under a voluntary Code of Practice. But the information
commissioner, Elizabeth France, has severe reservations about the
proposal's compliance with Article 8 of the Human Rights Act, and is wary
of implementing a voluntary mechanism that will be replaced with an
imposed order if unsuccessful.

"Part 11 isn't necessary, and if it is necessary it should be made clear
why," said Jonathan Bamford, assistant commissioner to the information
commissioner. "It would be far better to specify the retention period in
some statute rather than a voluntary code of practice, which may or may
not be followed." Clause 102 of the Anti-Terrorist Bill states that if
the voluntary scheme proves ineffective, the Secretary of State will be
able to force communications service providers to retain data.

Under the existing Data Protection Act 1998, a communications provider
must only retain traffic data for the length of time necessary for
legitimate businesses purposes. This law already contains a provision for
cases of national security, where personal data may be stored for longer
periods of time in order to assist in the prevention or detection of
crime. The Human Rights Act emphasises the need to interfere with
individual's rights only in limited circumstances, and Article 8
safeguards a person's right to respect for private and family life.

"There is no pressing need for data retention powers for national
security purposes," said Bamford. "Law enforcement officers have had no
difficulty accessing data for (investigation of the) 11 September attacks
-- communications providers have the data, and law enforcement officers
have been able to decide what they need. We need to look at the real evil
being addressed here."

The Office of the Information Commissioner is concerned that law
enforcement officers will use the new retention measures on a day-to-day
basis for minor criminal investigations. "Careful consideration must be
given to ensure that the provisions are appropriate to addressing these
more rountine needs," said France.

The communications data will be accessible under Chapter II of Part I of
the Regulation of Investigatory Powers Act (RIPA) that is shortly to come
into force, which makes it possible for law enforcement officers to
access traffic data without a court order for the purposes of detecting
crime and disorder, protecting public health and safety, and collecting
tax, as well as for cases of national security.

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