Data Retention (DRIP) Bill

I have received numerous emails and tweets about this particular Bill and am aware of how strongly many of my constituents feel about this situation. 

The Liberal Democrats and I take this issue very seriously.  Part of the reason why there has been a delay since the April ruling is because the Liberal Democrats wanted to ensure that this legislation included the necessary extra safeguards to protect the privacy of our citizens, and because the decision in April was so complex, we wanted to make sure to get it right.

I will accept that one day for debate in the House of Commons and two days in the House of Lords is rushed; however it is legislation that is maintaining existing legislation.  There is also a sunset clause, which I will discuss further below and there are also extra protections for individuals.

I understand many are pressing for a sunset clause of six months’ time; however if it was six months, with a summer and conference recess of roughly three months, we would be back in the same time table as we were with April.  For that reason, I do not accept that a 6 month sunset clause would be practical.  This sunset clause being in 2016 allows the next Government and political parties the opportunity to fully decide what new legislation or policies are necessary to deal with the retention of data.   I am certain that both the Tories and Labour will want to extend it further. This is very unlikely to be the position that the Liberal Democrats will take. We need to have full debates and see everyone come to a decision about what we think is necessary.  This will hopefully ensure that the next government gets it right and does not infringe on people’s freedoms.

Contrary to what some critics have claimed, the bill contains no new powers. One national newspaper claimed that because there is an £84 million cost attached to the legislation that this must mean that the legislation extends the scope the existing legislation. This was either a deliberate attempt to mislead people or a misunderstanding of the cost. There are no additional costs attached to the legislation. I am sure that most people are aware of this; however it really is worth reiterating.  This Bill is about retaining existing powers by clarifying the definition, not creating new ones and it is for these reasons I voted for the Bill.

In order to make sure everyone has fullest response, I would like to set out all the issues raised and provide answers to all questions to make it as clear as possible for everyone.   

 

Why do we need a Bill?

There are two reasons for introducing this Bill. First, in April this year the European Court of Justice overturned the EU Data Retention Directive, which will mean that internet and phone companies will soon start deleting data that the police need in order to investigate serious crimes. The reason was that the Directive lacked safeguards – it allowed Member States to compel phone and internet companies to store data, but said nothing about how that data should be accessed or for what purposes. As a result of this ruling, where the court ruling is relevant to the UK situation, we are making changes to change our system.

Secondly, communications service providers themselves have asked government to clarify the legal framework that allows our agencies to find out what terrorists and serious criminals are saying to each other (“lawful intercept”). These are companies which are based abroad, and want to continue to cooperate with the warrants that we serve on them, but have now said that they will stop cooperating in the next few weeks if we don’t make it clear that as foreign companies they are legally obliged to help.

This Bill is not the “Snooper’s Charter”.  Liberal Democrats care passionately about civil liberties, privacy and the need to limit abusive state surveillance. We have resisted and continue to resist anything that might be or give rise to a “Snooper’s Charter”.

As part of this package, the Liberal Democrats have negotiated a significant package of concessions and safeguards. These include:

 

o   The afore-mentioned sunset clause that will see the Bill lapse at the end of 2016.

o   Asking the Independent Reviewer of Terrorism Legislation, David Anderson, to carry out a review of our communications data and intercept laws.

o   Starting in the next Parliament, all three party leaders will commit to a full parliamentary review of RIPA, leading to proposals for an updated and reformed approach in 2016.

o   To sort out the issue of conflicting legal jurisdictions regarding the application of the law to foreign service providers, a senior former diplomat will be appointed to lead negotiations with the American Government and the internet companies to put these complex jurisdictional issues on a more stable footing through an international agreement.

o   We will establish for the first time a Privacy and Civil Liberties Oversight Board, based on the American Model, to ensure that civil liberties are properly considered in the formulation of Government policy ion counter-terrorism.

o   We will radically cut the number of public bodies who have the right to approach phone and internet companies for your data. Councils, for example, will now need to justify their requests first to a central body and then a magistrate, and will not be able to approach phone and internet companies directly.

o   We will also, for the first time, publish regular transparency reports listing new details about exactly how many warrants are issued, by whom, and for what purposes. The public will know more about how and why surveillance powers are administered on their behalf than ever before.

Q1: Why do we need emergency legislation?

There are two problems that need to be fixed urgently, and which therefore need fast-tracked legislation. If we don’t pass legislation before the summer recess, some companies will start deleting large amounts of stored data, and others will stop providing help with interception warrants. This will lead over the next few weeks to a very serious reduction in the ability of the police and intelligence to protect the public.

Q2: Does the Bill create new powers?

 

No. It simply confirms the position that we have had for a long time, and ensures that we don’t lose powers over the coming weeks.

 

Q3: Does the Bill allow the extension of powers by the back door?

No. Some people have suggested that the Bill gives the Home Secretary the ability to take further powers that go beyond what is on the face of the legislation by statutory instrument. This is not the case. The scope of the data retention powers is strictly limited to the types of data that were listed in the Data Retention Directive and the 2009 regulations – i.e. existing practice. The regulations that set out the detail of the data retention notices have been published alongside the Bill.

 

Q4: Could the Bill be used to re-introduce elements of the ‘Snooper’s Charter’?

No. The data retention provisions are identical to the scheme that has existed since 2009. None of the new categories of data that would have been collected under the Draft Communications Data Bill are included in the scope of this Bill. Clauses 4 and 5 (lawful intercept) similarly reflect what already happens: they do not allow the police or intelligence agencies to do anything they cannot already do.

 

Q5: Are you extending data collection powers to companies around the world?

RIPA has always applied to telecommunications services offered or provided to the public in the UK irrespective of where the company is based. That was made clear during the passage of the legislation. But in the absence of explicit extraterritoriality, some overseas companies have challenged whether it applies equally to them. The Bill is intended to put that beyond doubt.

 

Q6: The European Court of Justice found that the Data Retention Directive was incompatible with human rights. Why are you simply overruling them?

We’re not. The ECJ ruling struck down the European directive, not our own legislation. The UK implements the directive in part using a pre-existing framework of checks and balances under the Regulation of Investigatory Powers Act (RIPA). While that Act has rightly come in for criticism in some regards, not least by the Lib Dems, the basic framework for accessing data that it sets out IS compliant with ECHR. Where the court ruling is relevant to the UK situation, we are making a number of changes to respond to the ECJ judgement. These changes are set out in the regulations that accompany the Bill.

 

Q7: Is the Bill compatible with ECHR?

Yes, the Bill responds to the issues raised by the European Court, and a statement of compatibility with the ECHR will appear on the face of the Bill.

 

Q8:  What is your response to the concerns raised about legal jurisdiction?

We recognise that there are genuine issues around conflicting legal jurisdictions, and the position of companies with conflicting legal requirements is covered in clause 4(4) of the Bill. We are also appointing a senior diplomat to lead discussions with the US government and the companies to find a long-term, international solution to the question of how data stored in one jurisdiction can be shared with law enforcement and intelligence agencies in another jurisdiction. Such data exchange should only take place where it is necessary and proportionate for the investigation of a serious crime.

 

Q9: Why are you extending the definition of ‘communications service provider’?

The Bill does not extend it – in order to make clear that this includes the kinds of service that people are increasingly using to communicate.

 

Q10: Why is there a sunset clause?

There is a clear need to act quickly to deal with the particular challenges that we are currently facing, and to avoid a damaging loss of capability. But we recognise that there are serious questions around our existing surveillance laws and whether they are fit for the internet age. Liberal Democrats have been arguing for a full public debate about the need for reform for some time. The current Bill has opened the door to that debate, and to a comprehensive overhaul of the legislation ahead of the expiry of the sunset clause in December 2016.

 

Q11: Why does the sunset clause only expire at the end of 2016? Could it be brought forward?

This will allow Parliament to draw on the outcomes of the various reviews that are in progress (the RUSI panel, the ISC, and David Anderson’s work).

 

Q12: Could the sunset clause be extended by statutory instrument, allowing the Bill to have permanent effect?

No. The Bill will cease to have effect on 31 Dec 2016. It is an absolute termination provision. There is no possibility of extension by Order or any other route.

 

Q13: How does the reform package relate to the RUSI review?

Nick Clegg set out his thoughts on this question in his speech to RUSI in March 2014, where he announced the creation of an independent panel of experts from intelligence, technology, legal and civil liberties backgrounds to examine the case for reform. The panel holds its first meeting this week. The panel will report after the General Election and its findings will feed into the parliamentary review of RIPA which will be established shortly after the election, leading in turn to proposals for new legislation in 2016.

15 responses to “Data Retention (DRIP) Bill

  1. Should not Parliament be legislating to protect citizens from abuses, such as typified by the recent revelation of unjustified police surveillance of Stephen Lawrence’s family, or of anti-terrorism surveillance powers being used by local authorities to check out parental applications to desirable schools?

  2. There was no need for rushed legislation. Rushed legislation has been the hallmark of this LD assisted Tory government. Measured and strong debate would have (or at least could have) produced a more acceptable and rounded response. No excuse for any so-called Liberal to support such an illiberal measure without debate, I’m afraid.

  3. “No. Some people have suggested that the Bill gives the Home Secretary the ability to take further powers that go beyond what is on the face of the legislation by statutory instrument. This is not the case.”

    Isn’t there a power to do just that – the different provision for different purposes clause in (I think) s.1(2)(e)), That allows just that – additional powers pursuant to the (fairly wide) purpose of the bill – created by SI

  4. “it is legislation that is maintaining existing legislation”

    False. Clauses 4 and 5 are expansions of the interception warrant regime under RIPA.

    “some companies will start deleting large amounts of stored data”

    There has been no evidence for this, at all.

    “The Bill will cease to have effect on 31 Dec 2016. It is an absolute termination provision. There is no possibility of extension by Order or any other route”

    False. It could easily be repealed or amended by an Act of parliament.

    ” the Bill responds to the issues raised by the European Court”

    False. The Bill does nothing to comply with the April decision, indeed it is an attempt to place the 2009 regulations on a less legally exposed basis.

    “The Bill does not extend it – in order to make clear that this includes the kinds of service that people are increasingly using to communicate.”

    False. Clause 5 of the Bill expands the definition of “telecommunications service”.

    “The UK implements the directive in part using a pre-existing framework of checks and balances under the Regulation of Investigatory Powers Act (RIPA).”

    Wrong and clueless. The 2009 Regulations (under the ECA) implemented the Directive, not RIPA.

    I could go on. But it would be painful.

    Please don’t nod-along with what Lib Dem politicians are saying; they should have opposed this illiberal and misconceived legislation, and they know it.

    (btw, voted Lib Dem at 2010, will vote against them in 2015)

  5. John, please take note of what Jack of Kent has said in the comment above. The spin given this bill has two problems. Firstly, it is not sufficient to claim it maintains the status quo: it seeks to make legal something which has been found – rightly – to be both illegal and a violation of human rights. The UK security services have been caught with their hands in the cookie jar. The way to deal with that is not simply to hand them the jar. And your wallet too.

    Secondly, as Jack of Kent says, it clearly extends the scope of what is monitored, in ways which are not yet fully understood. As an IT manager, I now have to wonder if I have to retain webmail logs, give access to cloud storage, what about data my organisation stores on remote servers and accesses via the web?

    I’d like to believe the sunset clause will have any meaning, but recent governments have been notably poor at following through on promises or following either spirit or letter of oversight mechanisms and I very much doubt, as you yourself admit, the Tories or Labour will want to surrender these powers once accepted. The Lib Dems are not going, in 2016, to be able to have much influence over this as you are heading for political oblivion (another who voted Lib Dem for last two decades, will vote against them in 2015).

  6. “I am certain that both the Tories and Labour will want to extend it further. This is very unlikely to be the position that the Liberal Democrats will take.”

    The credibility of this quisling party is at rock bottom and I can’t imagine many of their former supporters will see any reason to believe statements of principle like this ever again. The Lib Dems are going to be wiped out as a political force next year, and it’s betrayals and weasel justifications like this which will have caused their downfall. Good riddance.

  7. Reblogged this on Infospectives and commented:
    This is the Liberal Democrats’ response to challenges about the nature, content and oversight of the DRIP bill. I am publishing without further comment to provide you with a basis for your own debate.

  8. You say that this bill is not another snooper’s charter, but the indiscriminate interception and retention of private communications data does not seem particularly democratic to me – quite the opposite in fact. If there is reason to believe that someone is involved in criminal activities then there could be a plausible case for recording their activities, but doing that anyway without probable cause treats all citizens as criminals under constant investigation. Is that the kind of society that we want to live in, or that we would wish our children to inherrit?

    Also you should consider the chilling effect which the bill may have. Even if retained private data is not being used inappropriately the knowledge that all electronic communications are being stored will alter the way that people behave. People may avoid seeking medical information or discussing important but contentious issues if they believe that nothing they do is private.

  9. Thank you for clarifying the Lib Dem’s position on protecting UK civil liberties and it’s respect for parliamentary process.

    I’ve voted Lib Dems in every single general election. I will be voting for the Green Party next year.

  10. Read Jack of Kent’s comments. They show that the LibDems either don’t understand what the Tories have led them into or else don’t want to know. I once voted LibDem but before the last election I’d figured out they aren’t trustworthy so I won’t do so again.

  11. It’s worth stressing that today the house of lords expressed their concern at the broad new powers this bill granted to the home secretary.

    I don’t blame you for not noticing these new powers – you were hampered by both the unseemly speed with which this bill was pushed through, and by your own indifference.

    Since you weren’t minded to attend the debate, I’d encourage you to go back and review it. If you do, you’ll see that without your attention or support, Tom Watson and David Davis stood up for civil liberties like they always, always do.

    You’ll also see a standout effort by Caroline Lucas. I’m sure you’ll agree that she was fantastic, and as the sole representative of her party, she made more of a stand for civil liberties than any of the 50+ members of your party managed.

    Overwhelmingly parliament showed it just doesn’t care, but David Davis, Tom Watson, and Caroline Lucas showed that there are people within their parties to whom civil liberties are important. I wonder if there’ll ever be a Lib Dem who cares as much.

  12. I emailed my strong objections to DRIP to my MP Mark Prisk. Unsurprisingly I got no reply. Jack of Kent is, as usual, spot on so no point in repeating his comments, you should read them and realise your folly. The Lib Dems have plumbed new depths and will rightly pay the price in 2015. I too voted for them last time but never, never again.

  13. You state that there are ‘two problems that need to be fixed urgently’, hence the need for emergency legislation. However, the urgency is only dictated by the necessity to pass the legislation before the summer recess. The government has known about this ’emergency’ situation since April. The government has decided to only put forward this legislation at the last minute, hence the government have entirely – and deliberately – created this notion of ’emergency’. You have knowingly colluded in a process to deny your constituents the ability to have any say in a law that affects them (and one that, surely coincidentally, does not affect you in the same way), whilst presenting it as being in their best interests. You and your party should be ashamed of yourselves.

  14. Pingback: Post Vote LibDem Response Vs Legal Analysis Of DRIP Bill Concerns | Infospectives·

  15. Will there be a response to the holes the above posters have made in the original posting – or, much like the new law, is it a case of “This is how it is. We’re not here to represent you, we’re here to rule you”, with no further interaction?

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