U.K. Surveillance Law Amendment May Not Satisfy EU

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By Ali Qassim

The U.K. government’s recent proposed amendments to its telecommunications surveillance law may not go far enough to satisfy EU law, leaving companies uncertain how to comply with data retention and other requirements, privacy professionals told Bloomberg Law.

Under the U.K. Investigatory Powers Act 2016, communications service providers are obliged to collect and store subscribers’ data for up to 12 months. The EU’s top court, the European Court of Justice (ECJ), ruled last year that indiscriminate retention of customer data contravenes EU law.

The back-and-forth has left companies that would be covered by the amended law guessing about what compliance standards to follow.

The U.K.’s response to the ECJ ruling “has no effect on the question of certainty in complying with data retention requirements,” Graham Smith, a privacy partner at Bird & Bird in London, told Bloomberg Law.

The amended law would limit government requests for telecommunications data to cases of serious crimes, the U.K.’s Home Office, the department responsible for police and crime. said in a call for comment on the proposed changes.

The government said, however, that it interpreted the ECJ’s ruling as not limiting data requests related to national security investigations. The amendments call for stronger data security safeguards for retained data, new procedures for independent authorization of data requests by the government, and better notification to individuals on requests for data.

Privacy advocates are doubtful the revised law would withstand judicial scrutiny.

Without narrowing the volume of data that communications services retain to only include “specific places, incidents or investigations, these changes will not meet the standards set by the courts,” Jim Killock, executive director of Open Rights Group, said in a statement.

The U.K. government ordinarily doesn’t open a bill to public comment in such fashion. The government cited ongoing public interest in investigatory powers in announcing it would seek public comment until Jan. 18, 2018. The secretary of state will consider the comments before sending a final amendments bill to Parliament.

“There is a chance that the revised U.K. regime will be challenged in court again so there is some uncertainty in that sense,” Till Sommer, head of policy for the Internet Service Providers Association, which represents over 200 digital economy companies, told Bloomberg Law.

Unclear Data Retention

“The most fundamental disagreement between the government and its critics is likely to be whether the legislation should set out clear, precise and objective limits on the use of data retention notices,” Smith said.

The existing rules give the U.K. secretary of state power to issue a data retention notice to communications service providers to generate, obtain, and retain communications data about users, including web browsing histories.

The proposed amendments provide little relief to internet service providers to comply with such notices.

The “overall volume and complexity of data” that communications service providers, including ISPs, are forced to retain, “remains rather high,” Sommer said.

The U.K.'s departure from the EU via Brexit may not affect its need to comply with EU law.

The U.K. surveillance law has to comply with EU law until Brexit and “depending on the transitional provisions there could also be a post-exit commitment,” Smith said.

For More Information

The government's consultation is available at http://src.bna.com/uGi

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