Europe gives May gets shattering Snooper’s Charter rebuff

Theresa May’s favourite spy legislation gets a major ‘non’ from Luxembourg

Posted 22 December 2016 by

The European Court of Justice has put a major block on the so-say ‘Snooper’s Charter’, declaring that the government’s plan to force ISPs to keep email data on a “general and indiscriminate” basis isn’t going to stand up.

The government was able to recently fnally get on the statute book rules to oblige service providers to hold on to communications data that strips out the content of emails and telephone conversations, but which would retain the email destinations and phone numbers used, and the times of the exchanges.

The British state’s argument is that this level of coverage is needed in a context of growing international terrorism and digital crime. The problem: Britain wants ISPs to hold user information for up to a year – but the Court says only targeted (i.e., named individual, not general user population) retention aimed at fighting serious crime justifies this level of state monitoring of Internet traffic.

In its judgement, the Court says that the Charter, or more properly the Investigatory Powers Act 2016, “exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society”.

The judges also stated that the Police or other state bodies should not be allowed to authorise their own access to this data, but that access requests receive prior authorisation by independent courts or similar judicial bodies.

The snub is a blow both to the government but also Prime Minister Theresa May, who has been a backer and high-profile backer of the controversial legislation back when she was Home Secretary – and had the ideas regularly blocked by either her then Lib Dem partners in the 2010-2015 Coalition administration, or the House of Lords. It finally only became law in November, after years of Parliamentary tussles.

It’s also a potentially explosive addition to the Brexit situation, as the smackdown highlights how nominally subordinate UK law is to Europe.

But many civil liberties supporters will welcome the eleventh hour halt to the law, which has been making many of them nervous ever since it was first mooted under May and Cameron at the start of the decade.

It’s also shaping up to fine old domestic political ding-dong, as the Court was brought into the picture by a complaint by Labour’s deputy Labour leader Tom Watson – with help at one point from a member of May’s own Cabinet, Brexiteer David Davis.

“Most of us can accept that our privacy may occasionally be compromised in the interests of keeping us safe,” commented Watson on the success of his challenge.

“But no one would consent to giving the police or the Government the power to arbitrarily seize our phone records or emails to use as they see fit.”

The Home Office told Sky News last night and other news reporting media that it was “disappointed” with the judgement.

“The Government will be putting forward robust arguments to the Court of Appeal about the strength of our existing regime for communications data retention and access,” it is quoted as saying.

“Given the importance of communications data to preventing and detecting crime, we will ensure plans are in place so that the police and other public authorities can continue to acquire such data in a way that is consistent with EU law and our obligation to protect the public.”

The UK IT industry has already started to react to the news, with Lee Munson, security researcher at a called Comparitech.com claiming, “Christmas has truly come early for privacy-conscious Brits following the European Court of Justice decision to kibosh the so-called ‘Snooper’s Charter’.

“Ruling that unwarranted bulk data collection flies in the face of EU law, the judges’ decision is perhaps surprising, given the heightened tensions around terrorism at this time, but welcome nonetheless.

“With no strong evidence to suggest that increased surveillance has a noticeable effect in detecting or preventing online crime, UK citizens may now be inclined to breathe a quick sigh of relief before stopping to wonder why their nation still retains the largest number of CCTV cameras per capita anywhere in the Western world.”