The coalition’s plan to store information on every citizen’s use of email, the web, and phones have been dealt a serious blow by a parliamentary committee report. Padraig Reidy reports

Home Secretary Theresa May’s plan to store information on every citizen’s use of email, the web, and phones have been dealt a severe blow by a parliamentary committee report.

In a report seen by Index on Censorship, the Joint Committee on the Communications Data Bill described the proposed new law as “too sweeping”, and going “further than it need or should”.

The committee was particularly concerned by a clause in the bill that would give the Home Secretary the power to extend the remit of the law at any time, without putting the changes before parliament. The government claimed that this was needed in order to “future proof” the legislation, saying it would otherwise be impossible to keep pace with digital communications innovation.

But critics of the Communications Data Bill, including Index, said the clause was unacceptable, allowing huge levels of surveillance and storage without any democratic oversight. The committee today endorsed that view, while acknowledging the need for governments to be able to carry out limited surveillance.

Currently, communications service providers store data on communications traffic for one year. The government’s proposal would oblige them to hold it indefinitely. The Home Office defines “communications data” as: “[T]he information about a communication. It can include the time and duration of a communication, the number or email address of the originator and recipient and sometimes the location of the device from which the communication was made.”

The cross-party committee of lords and MPs also criticised the government’s consultation on the bill, saying: “Meaningful consultation can take place only once there is clarity as to the real aims of the Home Office, and clarity as to the expected use of the powers under the bill.”

The bill’s proposal for a “request filter”, allowing government agencies to search stored information, also came under fire. While acknowledging the capacity would have certain benefits, the report warns that safeguards should be introduced to minimise the risk of “fishing expeditions”, by restricting search criteria.

Index on Censorship welcomed the report: Head of Advocacy Mike Harris said:

“The Joint Committee report supports what Index has been saying all along: that the draft Communications Data Bill would threaten the privacy and free expression of British citizens, effectively reversing the presumption of innocence and potentially chilling the information that we share. If enacted in its current form, it would mean that the UK had one of the most draconian data laws in the western world, giving justification to surveillance tactics carried out by authoritarian states such as Belarus and Kazakhstan.”

Comms Data Bill Index Submission 22 August 12

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In a speech to the House of Commons, May cited a European Court of Human Rights judgment that stop and search powers granted under Section 44 were illegal and equal a violation of the right to a private life. The court stated that powers were “drawn too broadly — at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient safeguards to protect civil liberties.”

May went on to say that the government cannot appeal the ECHR’s judgment — nor would they have done had they been able to.

Shadow Home Secretary Alan Johnson criticised the government’s decision, stating that the decision in Strasbourg was based on how stop and search was used “some years ago” and that the use of Section 44 had “dropped considerably over the last two years”.

May says that after seeking urgent legal advice and consulted police forces she would be “introducing a new suspicion threshold”. Instead of “requiring a search to be ‘expedient’ for the prevention of terrorism” a search would have to be “necessary for that purpose”.

Officers will no longer be able to search individuals using Section 44 powers. Instead, they will have to rely on Section 43 powers – which require officers to reasonably suspect the person to be a terrorist.

Officers will only be able to use Section 44 in relation to the searches of vehicles and they will have to have “reasonable suspicion” to do so.

The case that brought Section 44 to this end was brought to the European court by journalist Pennie Quinton and student Kevin Gillan. They were stopped outside demonstrations at Defence Systems and Equipment International, the world’s largest arms fair held at the Excel Centre in East London.

The High Court and the Court of Appeal rejected Quinton and Gillan’s assertion that tactics under Section 44 were illegal, citing the threat of terrorism in London.

However, the ECHR declared it an unlawful violation of an individual’s right to privacy. Because the UK has signed up to the European court, decisions made by it are binding.

Pennie Quilton told Index on Censorship: “It’s the least Theresa May can do. Section 44 is a law that has been challenged and has been ruled out of order. This government has to make amendments to the law to stay in line with the ruling in Strasbourg. Something had to be done because the police said they weren’t going to change the way they operated despite the judgment.”

The Metropolitan police said that despite a ruling in January by the European court that deemed Section 44 unlawful, they would continue using it as its decision was being appealed.

Jo Glanville, editor of Index on Censorship commented: “Stop and search under section 44 was widely used against individuals exercising their legitimate right to protest. It has been one of the most notorious and frequent abuses of free speech over the past decade. The Strasbourg ruling is an important landmark and I’m delighted that the government is scrapping the use of these powers.”

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