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The highly controversial DRIPA (Data Retention and Investigatory Powers Act) was dealt a further blow last week when the High Court ruled that parts of the current law were unlawful and inconsistent with European Union law.

DRIPA is a temporary law which was brought in to replace the ‘invalid’ RIPA (Regulation of Investigatory Powers Act) following last year’s European Court of Justice rulings but it seems this replacement law has also fallen foul of the courts when queried by Tom Watson MP, David Davis MP and civil rights group Liberty, who worked together to bring the case to court.

Whilst DRIPA is due to be replaced by an allegedly tougher law by the end of 2016, the High Court has ruled that it needs significantly adjusting before that date. By March 2016 the law must be amended to require independent approval to access communications data.

The High Court found sections 1 and 2 of DRIPA:

  • Both fail to provide clear and precise rules to ensure data is only accessed for the purpose of preventing and detecting serious offences, or for conducting criminal prosecutions relating to such offences.
  • Access to data is not authorised by a court or independent body, whose decision could limit access to and use of the data to what is strictly necessary. The ruling observes that: “The need for that approval to be by a judge or official wholly independent of the force or body making the application should not, provided the person responsible is properly trained or experienced, be particularly cumbersome.”

Commenting on the ruling Mr Davis MP said: “The government gave parliament one day to pass this legislation. This court has given the government nine months to sort it out. It’s the right judgement. It’s a measured judgement. It gives no risk to security because the government has plenty of time to sort it out. What this reflects is the emerging consensus in the last few weeks that prior judicial approval [of intercepting communications] is needed.”

Unsurprisingly the Home Office security minister, John Hayes, disagrees: “We disagree absolutely with this judgement and will seek an appeal. Communications data is not just crucial in the investigation of serious crime. It is also a fundamental part of investigating other crimes which still have a severe impact, such as stalking and harassment, as well as locating missing people, including vulnerable people who have threatened to commit suicide.”

Whilst the various parties involved continue to debate the pros and cons of this case and the requirement of this law in general we wonder if this latest decision will have a bearing on future drafts of data retention laws.

Will this impact on future data retention laws?

It’s hard to say at this stage. It’s widely expected that Theresa May will push for much stricter rules on data retention that will require ISPs and providers to collect and store larger quantities of communications data – something that continues to be debated by industry and civil liberty groups. The exact details of the Government’s plans have not yet been released but this latest ruling and the ongoing requirement to comply with the ECJ’s previous rulings means future plans for so called ‘snooping laws’ are likely to be somewhat restricted. This case clearly demonstrates that mass surveillance without reasonable cause will not be tolerated and there will be a requirement for oversight by an independent body or court in any case. This may hamper previously suggested plans from the Government.

Whilst we understand the need for surveillance in the fight against terrorism and serious crime we agree that certain safeguards should be put in place to protect the privacy of the public and ensure that police and security agencies are not overrun with immense amounts of data. This latest ruling seems to bring in an appropriate balance.

Have your say!

Do you think this latest ruling will have an impact on future data retention laws? Do you think laws will inevitably get tougher regardless? Let us know your opinion by leaving us a comment below.

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