Consultation on surveillance points to tighter rules for accessing communications data
The police and other bodies will need the go-ahead from a new independent watchdog before tapping into phone and internet records, under proposed curbs to the so-called “snoopers' charter”.
The Home Office has bowed to pressure to introduce new safeguards to the controversial legislation, after the EU's highest court ruled it illegal.
Under plans in a newly published consultation document, a new Office for Communications Data Authorisations (OCDA) would be set up with its own headquarters and dedicated staff to consider applications from the police and other public bodies. They would include local authorities, which would require “senior internal approval” before sending an application to the OCDA.
Councils would no longer have to gain judicial approval by a magistrate – as they do under the “snoopers’ charter”, or Investigatory Powers Act (IPA) – which would “undermine” the OCDA, the Home Office said.
The Border Force, Department for Work and Pensions and HM Revenues and Customs would still be permitted to authorise access, but only in cases of “validly established urgency”, the document states.
Furthermore, access to communications data would be limited to serious crimes punishable by prison sentences of at least six months, which involve terrorism, violence, privacy breaches, significant financial gain, or are committed by a government body or company.
The changes aim to comply with a ruling by the European Court of Justice (ECJ) that the UK’s surveillance powers violate EU law by allowing the “general and indiscriminate retention” of data without independent oversight. They will also be seen as an attempt to make it easier for the UK to strike a deal to continue the flow of data after Brexit, which is threatened by the ECJ’s ruling.
At stake is Britain’s access to intelligence sharing through the Europol law enforcement agency and to the Schengen Information System, which holds an 8,000-name watchlist of suspected terror suspects.
Business leaders have also spoken of fears that they will have to move part of their operations to the EU or risk losing business to rival firms on the continent, without an agreement on data flows.
Announcing the seven-week consultation, Home Secretary Amber Rudd said the proposed safeguards complied with the ECJ ruling “while still allowing the police to use communications data to solve crimes, catch paedophiles and protect the public”.
She said such data is used in 95% of cases handled by the Crown Prosecution Service's organised crime division, including in every major counter-terrorism investigation over the past decade.
More than half of the data sought in child abuse cases is more than six months old and may not have been available “if the Government did not have the ability to ask providers to retain communications data”.
National security caveat
However, the Government claimed the ruling did not apply to data requests “made for national security purposes” or the activities of MI5, MI6 and GCHQ.
Martha Spurrier, the director of Liberty, dismissed the plans as “a cop out” and called the definition of serious crime too broad.
“It fails to propose the robust system of independent oversight that is so vital to protect our rights and ignores other critical changes demanded by the court,” she said.
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