Tempus fugit …..

Where does the time go? It seems only just a few weeks ago that we were discussing the ramifications of the proposal for a European Data Retention Directive. The reality is that this was now five years ago and the major discussions took place during the UK Presidency of the European Union in the second half of 2005.

We are now fast approaching the date set within the Directive for the European Commission to report to the European Parliament and the Council on the working of the Directive and its impact on the economic operators and consumers. The date for the submission of the evaluation is 15th September 2010 - just 6 months away now. As a result of the evaluation, the Commission will determine whether it is necessary to amend the provisions, particularly in relation to the nature of the data to be retained and the period of retention. The results of evaluation must be made public.

In the background to the imminent evaluation there are some interesting developments and it is clear that the Directive has not yet been applied across all member states of the European Union.

On March 2nd, the German Constitutional Court ruled that the implementation of the Directive in Germany was in contravention of the German Constitution. Der Spiegel reported on Wednesday 3rd March that the Court had ruled that data collected and retained under the (now unconstitutional) law was to be deleted with immediate effect and that strict controls were to be brought into place before the law could be re-introduced. The case has taken some two years to progress but was brought as a class action on behalf of some 35,000 German citizens who argued that the new law went too far.

The court agreed and said that there was insufficient clarity in the reasons for the retention of data and that there were insufficient safeguards on the data once retained. A key point here is that the Constitutional Court has struck down the German implementation of the Data Retention Directive, not the Directive itself. The German government must now look at the decision of the Court and consider the safeguards that must be put into place before it can draft a new law and introduce that. It is certain that there will now be intense public scrutiny.

Belgium also faces an interesting period, particularly as it is scheduled to take over the rotating Presidency later in the year and will be ‘in the hot seat’ when the evaluation of the Directive is due to be presented. The transposition of the Directive into national (Belgian) law has taken some time and there has been considerable and vocal opposition to the Government proposals. The proposals went much further than provided for within the Directive including banking data and use of the data beyond what may be determined as ’serious crime’. The Belgian proposals also called for the retention of data at the maximum period (24 months) provided for within the Directive. The initial proposals attracted a negative response from the Belgian data protection agency, an almost unheard of situation - although that eventually was turned around to a more positive response when the proposals were watered down time scales pulled back to a more standard 12 months.

The Belgian proposals have not yet completed the parliamentary process. In the last couple of months, Belgian ministers have been trying to reach consensus with stakeholder groups to see if they can bring forward a new law before June. That is an important date - the rotating Presidency comes to Belgium on 1st July and the government wants to prevent the country from critiscism about their failure to implement whilst they are also supposed to be leading discussions on evaluation.

It is clear that some Belgian politicians had been awaiting the outcome of the case before the German constitutional court. That is now clear - it remains to be seen how this may affect the Belgian transposition.

Article 8 again ….. and the UK loses another case!

A few months ago we heard the outcomes of the case of ‘Marper and S v United Kingdom’ brought before the European Court of Human Rights. Now, you may remember this one - something of a landmark. The court opined that the storage of DNA profiles in England was contrary to the privacy requirements enshrined under Article 8 of the European Convention on Human Rights.

Just in case you had missed the Article, it states:

ARTICLE 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The problem for the UK, and for England in particular, was that the claimants in the case were innocent persons who had not been charged or convicted of any offence. It was, said the Court, an infringment of their privacy for their DNA records to be retained within a national criminal database. Now, interestingly Scotland applies the law in a different way to England (of course!) and the Scottish model was approved by the European Court. The Conservatives have given a commitment to implementing the Scottish model when (not if!) then win the next election. We’ll hold them to that. The Government in London has now announced a revision of rules to apply in England - rules that have all the sublety of a two fingered salute to Europe - and has indicated that it will change the rules to allow law enforcement to retain data for 6 or 12 years. No intention there to remove the data as required by the Europen court.

But - along comes another case and again the Courts find that the actions of law enforcement in the UK go against the requirements of Article 8. Andrew Wood had his photograph taken by police surveillance units when (perfectly legitimately) he attended the AGM of a company in which he had shares. The police photographs were stored on file and were potentially available for use in investigation of other acts. The Appeal Court has now rules (2 to 1) in the case and has instructed the Metropolitan Police to destroy copies of photographs of Mr Wood.

The implications here are interesting. The police must now destroy Mr Wood’s images - but must also now look to identifying, removing and destroying images of other perfectly law abiding persons who happened to come in front of their surveillance photographers - perhaps at football matches, demonstrations etc. Taking photographs is a legitimate practice the court held - but the police should identify those who were of good character and should destroy the images. The implication of that opinion by Lord Justice Dyson is that images should only be retained of those who are nicked - and they will be photographed at the police station anyway so facial recognition should be able to locate, and identify them in surveillance image databases. Anyone else should then deleted.

Naturally the police were not too happy and may now consider an appeal to the House of Lords (note - there was one dissenting opinion in which Lord Justice Laws argued that the police were ‘operating within the margin of operational discretion in keeping the photos’.

The Crusher senses the wind of change blowing - the surveillance society created under New Labour is unravelling before the courts. With an increasingly lame duck administration and an imminent election (which the PM has tacitly recognised that Labour will lose) we may be seeing a few steps back from the oppressive nature of surveillance. Where next - data retention and the Communications Data Bill?

Not so centralised database ……

So, after all the speculation, the Home Office have now published the consultation paper on ‘Protecting the Public in a Changing Communications Environment’ and it now makes clear that the idea of a single centralised database containing records of all telephone calls, Internet login/logout, email, web access etc. has been kicked into touch. Page 25 of the paper makes clear, ‘The Government has no plans to create a centralised database to store all communications data.’

However, it is also clear that this would be the preferred option, ‘This approach would have several advantages. It would be the option most likely to come close to maintaining the historic capability of public authorities in their use of communications data. It would be the most effective at delivering fast and efficient access in support of the law enforcement and intelligence agencies and emergency services; the least challenging technically to implement; and the cheapest to build and run.’ But, Government is clearly aware of the sensitive politics of any implementation in this manner and has accepted that this wqould be a step too far and a massive intrusion into privacy. Richard Thomas, Information Commissioner, had made it quite clear that a single centralised database would be seen as an infringement of data privacy legislation and this advice seems to have been taken on board, ‘The Government recognises the privacy implications in holding all communications data from the UK from a 12-month period in a single store. The Government therefore does not propose to pursue this approach.’

So, the remaining option is to require communications service providers (CSPs) to retain data themselves and to release to national security and law enforcement authorities on receipt of the appropriate (RIPA) authority. That is similar to the current provision and the requirements of the Data Retention Regulations. However, the proposed plans go further than the requirements of the European Data Retention Directive (DRD) - law enforcement agencies have advised government that they require access to a broader range of data than that required under DRD. “We also need to ensure that UK companies collect and store additional types of communications data about their own services, which are not included under the EU Data Retention Directive. This includes data that communication service providers do not generate or process about their services.”

So what would this additional data retention requirement include. Web access for certain - but again, not the content, only the access to the server (to the domain rather to internal pages), volume of data transferred (download/upload), access to third party services.

Ah, this last is interesting. Acccess to third party services. Government is clearly aware of the limitations of the DRD and is now looking to close loopholes. DRD does not include web access and does not include access to services that are not hosted in the UK. Now, we know that a large number of users use webmail and that the major services (Hotmail, Gmail etc.) are hosted in the US. There is no provision under DRD for retention of any data relating to mail sent via these services - nor for any retention of data sent via other means including social networking sites, game sites, forums etc. Govt. now wants to close this loophole, ‘This would include third party data relating to internet-based services and communications services provided from outside the UK.’

Now that leaves some interesting questions. If CSPs are to be required to retain data relating to access to systems and servers outside of their network (and outside of the UK and EU) then they are going to have to collect the data by analysing the traffic flow on their own network. In practice this means deep packet inspection (DPI) of ALL traffic. DPI imposes some overheads - in order to undertake analysis and extraction of data without impacting on user experience will require real-time inspection with substantial processing demands. That is expensive. Well, at least the Govt. recognise this as the potential costs are estimated in the consultation as £2 Billion (yes, that’s right, 2 BILLION pounds).

The technical limitations are not the only concern. For CSPs to effectively read each and every packet will require substantial changes to current legislation. In effect, what will be required will be the electronic equivalent of opening mail, checking the contents and storing data. It is illegal to intercept the post, it is illegal to intercept traffic in a communications environment. Clearly the intention of the Government is to change the legal position to allow CSPs to analyse traffic and to retain data.

At present, there may be some inspection going on at CSP level in order to identify traffic types and to prioritise traffic flow - packet shaping. This is used to control use of high volume services such as peer to peer transfer. What is currently done is relatively simple compared to what may be required - traffic packets are checked to see what the type of data is and automatically routed or controlled as a result. The plan is for data to be read and then recorded and retained - and for the data to be retained for 12 months.

Now we can see an advantage for the Govt. in making CSPs retain the data. If there is a leak of data then it will be the CSPs at fault and not the Govt. Govt. agencies (national security, law enforcement etc.) will only become involved when they request data to be transferred from the CSP store.

The single centralised database has become a decentralised, distributed store of data. Once you set those up, the next step is to look to see how they could all be linked. We know that the Govt. views the single database as being the best option (and the cheapest). What they are going to do is to plan a distributed store that may circumvent privacy concerns, will be more expensive but will still store the same information. And that is going to be far more than is currently retained.

Privacy watchdogs will just be sharpening their claws - they will need them.

EU to open proceedings against the UK

The European Commission has announced its intention to open an infringement action against the UK Government after complaints from UK Internet users about infringments of their privacy through the use of targetted advertising.

The actions result from the testing of the Phorm process by BT earlier in the year. Problems arose when users complained that they were not aware of the trial or the use to which their web usage would be put. Behavioural advertising used data collected by analysis of web traffic patterns to select advertising and push this to the end user. Users complained that the analysis was an infringement of privacy.

“Technologies like internet behavioural advertising can be useful for businesses and consumers but they must be used in a way that complies with EU rules. These rules are there to protect the privacy of citizens and must be rigorously enforced by all Member States,” said EU Telecoms Commissioner Viviane Reding. “We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of EU rules on the confidentiality of communications. I call on the UK authorities to change their national laws and ensure that national authorities are duly empowered and have proper sanctions at their disposal to enforce EU legislation on the confidentiality of communications. This should allow the UK to respond more vigorously to new challenges to ePrivacy and personal data protection such as those that have arisen in the Phorm case. It should also help reassure UK consumers about their privacy and data protection while surfing the internet.”

It is an offence to intentionally intercept communications in the UK. The key word there is ‘intentionally’. Of course, there are circumstances where interception can be lawful and these are controlled under the Regulation of Investigatory Powers Act and require warrants to be issued - unless it can be reasonably assumed that the subject had given consent. It is the giving of consent that is the issue in relation to behavioural advertising - users had complained that they were unaware of what was being done and that their ISP had failed to advise them of trials taking place.

The indication of the European Commission notice is that the Commission believes that the UK has not correctly implemented European Data Protection laws. That will mean some re-drafting is required - but, of course, we will have to await the outcome of the Commission proceedings before we see actions in the UK. It would seem likely that the role of the Information Commissioner would be extended to cover any required changes.