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Edwardian statute casts shadow over data sharing

06/02/17

Commission calls for replacement of Official Secrets Acts to reform ‘irrational’ laws on protection of official information

Government plans for wider data sharing could run into trouble because of irrational and outdated laws governing official secrets, according to the independent expert body charged with law reform.

In a report  commissioned by the Cabinet Office, the Law Commission says the legislative landscape looks irrational, dispersed and lacking in uniformity. Data sharing measures in the Digital Economy Bill, currently in committee stage in the House of Lords “do not streamline the legislative landscape, but rather add to it”, the report, Protection of official data: a consultation paper, states.

Part of the problem is that laws drafted under King Edward VII to curb the activities of spies  lurking around naval dockyards or purloining papers from ambassadors’ desks are still the basis of protecting data in the Wikileaks era.

“The Official Secrets Act 1911 still provides the principal legal protection in the United Kingdom against espionage, despite the fact it was enacted in the run up to the First World War”, the paper says.

The legislation’s archaic language, such as “die, seal or stamp” does not reflect how information is stored in the digital era. Meanwhile its focus on military sites and bases bears little relation to modern concepts of  the critical national infrastructure.

Munitions of war

Technological advances have increased the ability of government to deal with large amounts of information, which has had a significant impact upon the relationship between citizens and government. In the modern era, sites that store sensitive information require just as much protection as sites that store “munitions of war”.

The paper proposes that the act, and successor measures passed in 1920 and 1939, be repealed and replaced with a single espionage act. As part of this programme it also suggests that the 1989 Official Secrets Act, which replaced the notorious “catch all” section 2 of the 1911 law, be repealed.

But inconsistencies in official secrets laws are only part of the problem, the commission states. "Numerous offences" criminalise the unauthorised disclosure of information: five disclosure offences that relate specifically to nuclear energy, for example. The laws differ widely in definitions of what constitutes personal information and whether there is a public interest defence for leaks.

Harm to millions

While there may be good reason for inconsistency, “from a theoretical perspective the legislative landscape looks irrational, dispersed and lacking in uniformity”. The Digital Economy Bill, which would provide a single gateway to enable public authorities specified by regulation to share personal information, could add another layer. 

A particular concern is the ease with which “individuals can now disclose large quantities of personal information instantaneously, causing harm to millions of people”. The report echoes the information commissioner in calling for tougher sentences.

“It is questionable whether a maximum sentence of even two years’ imprisonment could appropriately reflect the harm done by an intentional and large scale disclosure of personal information, especially if it is done for financial gain,” it says.

The commission’s final report on the protection of official data project is expected this spring. “We welcome views,” says Professor David Ormerod QC, law commissioner.

 

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