The controversial new laws, laid before Parliament in September,
give public authorities – other than the police and intelligence
agencies – access to personal data held by telcos and ISPs for
periods of up to twelve months.
They form part of a package of measures produced under the
Anti-Terrorism, Crime & Security Act (ATCSA), which was enacted
in the aftermath of the September 11th atrocities.
This Act required the retention of communications data on the
grounds that these were needed for the purpose of fighting
terrorism. These data, retained on anti-terrorism grounds, will be
accessible by provisions under the Regulation of Investigatory
Powers Act (RIPA) to a range of public authorities for purposes
unconnected with terrorism.
Communications data are those data, retained by telcos
(including ISPs and interactive television service providers),
which describe the caller and the means of communication (e.g.
subscriber details, billing data, e-mail logs, personal details of
customers, and records showing the location where mobile phone
calls were made). Communications data do not contain the content of
the communications.
Critics, including the Parliamentary Joint Committee on Human
Rights, are concerned that the measures will breach the European
Convention on Human Rights, and until late on Thursday it looked
likely that Conservative, Liberal Democrat and Cross Bench peers
would oppose the Orders.
However, at Government ultimately secured its victory.
A 'fatality' motion by Deputy Opposition leader Baroness Blatch
provoked calculated outrage on the government benches. Her motion,
which proposed to kill the government's Order outright, was a
device that had not succeeded in the Lords in 30 years.
Government members threatened that the very basis of the House
would fundamentally change if the fatality motion was passed. The
Government vowed that if the motion succeeded it would exact
revenge by killing any and every Order proposed by a future
Conservative government.
The Liberal Democrats, which until then had agreed to block the
data retention Orders, reversed its position. By 4pm, faced with
certain defeat, the Conservatives were then forced to withdraw the
motions. The proposals passed unopposed.
This means that after a short period of implementation of a much
derided 'voluntary' retention scheme, the Government will be able
to pass regulations forcing all communications providers to store
and yield information on all their customers.
However, two additional motions, favoured by activist groups
Privacy International and the Foundation for Information Policy
Research, were approved by the Lords.
The first, proposed by Lord Phillips of Sudbury, states that the
Interception of Communications Commissioner should be compelled to
inform "any person who appears to have been adversely affected by
any wilful or reckless failure on the part of any person exercising
or undertaking any of the powers and duties conferred or imposed on
him by the Regulation of Investigatory Powers Act 2000".
This means that, for the first time, the oversight body must let
people know when their privacy has been improperly invaded.
Baroness Blatch also succeeded in a motion requiring the
government to report to Parliament the extent of overseas access to
personal information stored by communications providers. Such
access is widespread, and available to many developed and
developing countries.
A furious Baroness Blatch also put the House on notice that a
Private Members Bill would be tabled next year to redress many of
the problems identified by the Opposition.
Privacy International called the passing of the Orders "a dark
moment in the history of the House of Lords."
"The government should never have succeeded," commented Simon
Davies, Director of Privacy International. "The proposals were
approved only because the Liberal Democrats caved in under pressure
from unprecedented threats by the government".
Mr Davies vowed to continue fighting the proposals, in the
courts and through the use of more aggressive campaigning tactics.
"I would have no hesitation is taking legal action against
Communications Service Providers who comply with a regulation that
is unlawful, regressive, dangerous and unnecessary," he said.
The text of the
House of Lords debate is available through Hansard.
