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EU’s top court declares UK surveillance powers illegal

ECJ says legislation ‘cannot be considered to be justified within a democratic society’

The ECJ ruled the UK’s new legislation was illegal because it allowed “general and indiscriminate” retention of electronic communications

Wed Dec 21 2016 - 20:53

The UK's surveillance laws have been deemed illegal by the European Court of Justice in a case that throws into question the fate of the UK's new Investigatory Powers Act.

On Wednesday, the ECJ ruled the legislation was illegal because it allowed “general and indiscriminate” retention of electronic communications. The judgment said member states could perform “targeted retention of that data solely for the purpose of fighting serious crime” but not the mass and indiscriminate data collection of everyone in Britain allowed by a new UK spying regime.

This type of legislation “cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the charter”, the ECJ said, referring to the charter of European human rights.

One of the politicians who originally brought the case was David Davis, now the UK Brexit minister, who has the task of taking his country out of the jurisdiction of the Luxembourg court. As a backbencher, however, earlier this year Mr Davis turned to the ECJ in an effort to defend British civil liberties. Mr Davis withdrew from the case after becoming Brexit secretary in July.

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The Home Office said it was “disappointed” with the judgment and would consider its implications.

Repealed

Mr Davis brought the case challenging the UK's rules on data retention, under the Data Retention and Investigatory Powers Act 2014 (Dripa), together with Tom Watson, deputy leader of the opposition Labour party.

Although Dripa is due to be repealed by the end of this year, the Investigatory Powers Act (IPA) will be adopted in 2017. The latter significantly expands the mass data-gathering powers challenged in this case.

Specifically, the new law compels internet and phone companies to keep the records of every phone call made and every website visited by any of their users for 12 months. Not only would telecoms companies have a list of every site visited or call made, they would also record the date, time and duration of these actions.

Dozens of public organisations and departments ranging from the police, HM Revenue & Customs, customs officials and intelligence agencies, to the NHS, the department of health, the Food Standards Agency and the Gambling Commission, will be able to access the communications of people in Britain, in some cases without a warrant.

– (Copyright The Financial Times Limited 2016)

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