LACK OF TRANSPARENCY IN U.K.’S BULK DATA COLLECTION CRITICIZED BY OVERSIGHT AGENCY

 

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As terror attacks roil France and Germany, the U.K.’s new Prime Minister Theresa May has warned that her country faces the same threat. But after the release of an Interception of Communications Commissioner’s Office (IOCCO) report, she may have to reform one tool that national security hawks claim is indispensable to preventing terrorism: bulk data collection.

The IOCCO’s report criticized the secrecy, lack of oversight and absence of codified procedures involved in bulk data collection requests from intelligence agencies and law enforcement to communications service providers (CSPs) under section 94 of the Telecommunications Act of 1984.

Section 94 of the Telecommunications Act provides the U.K. government with very broad authority to issue “directions” to telecommunications companies in the interests of national security, such as requesting bulk communication data, “most of which relates to individuals who are unlikely to be of any intelligence interest.”

The report is a comprehensive review of the government’s historic use of section 94, which then-Home Secretary Theresa May avowed would be explicitly made as part of the new Investigatory Powers Act in 2015.

The IOCCO—an independent oversight body for the government’s acquisition of communications data—found it difficult to complete the report due to the secrecy provisions that government directions for communications data are subject to, and none of the directions have been laid in Parliament.

Moreover, section 94 “does not include any provision for independent oversight or any requirements for the keeping of records,” and no “codes of practice for the exercise or performance and duties relating to section 94 directions.”

The report notes that the Investigatory Powers Bill will address some of these issues, but may not be sufficient itself if, according to a recent finding by the European Court of Justice’s advocate general, these powers should only be reserved for investigations of serious crime.

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