The UK government’s Investigatory Powers Act 2016 (also known as the Snooper’s Charter) has been dealt a blow after the European Court of Justice ruled that the “general and indiscriminate retention” of internet data and communication is illegal.
This is a serious setback for Theresa May’s government which introduced legislations that not only requires ISPs to store customers’ browsing history for a year, but also make this data available to a large number of agencies. The European court made the ruling following a legal challenge made by MPs David Davis and Tom Watson which gained the support of privacy groups.
The legal challenge had already been ruled upon by the high court in England around a year and a half ago. At the time, the court upheld the challenge, but the UK government chose to appeal, leading to the case being taken to the European Court of Justice — the EU’s highest court.
At the moment it is not clear whether or not the ruling will have much bearing on the implementation of the Investigatory Powers Act, particularly post-Brexit when the European court will have no say in UK law. The ruling makes it clear that Europe believes interference with internet users’ traffic is only justified when seeking to fight crime:
The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious. The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.
The court goes on to say that the Snooper’s Charter goes far beyond what could be considered justifiable:
Legislation prescribing a general and indiscriminate retention of data does not require there to be any relationship between the data which must be retained and a threat to public security and is not restricted to, inter alia, providing for retention of data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved in a serious crime.
Such national legislation therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the charter.
But even if Brexit ultimately means that the European Court of Justice’s ruling holds no weight in the UK, it has once again brought the Investigatory Powers Act back into the limelight and raised even more questions about whether it should be implemented.
Predictably, the government is planning to appeal once again.
Image credit: Pavel Ignatov / Shutterstock