Blunkett security laws may be illegal

[Owen Blacker]

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1

http://www.guardian.co.uk/guardianpolitics/story/0,3605,765917,00.html

| Blunkett security laws may be illegal
|
| Stuart Millar, technology correspondent
| Wednesday July 31, 2002
| The Guardian
|
| Sweeping powers enabling law-enforcement and intelligence agencies to
| demand the communications records of British telephone and internet
| users may be illegal, according to legal advice obtained by the
| privacy watchdog.
|
| The information commissioner, Elizabeth France, has warned the Home
| Office that the new powers may breach human rights law because
| website, email or phone logs available strictly for national security
| investigations can be accessed by police or intelligence officers for
| more minor cases such as public health and tax collection.
|
| The legal advice, from Ben Emmerson QC, throws the government's
| electronic surveillance regime into fresh disarray, and raises the
| prospect of David Blunkett, the home secretary, being forced to choose
| between rushing legislation through parliament or dropping the
| measures completely.
|
| It focuses on the contradiction between two pieces of legislation
| governing access by the authorities to communications data, which
| includes records of phone calls made and received, the source and
| destination of emails, addresses of websites visited, and mobile phone
| location data, which is capable of revealing the user's whereabouts to
| within a few hundred metres.
|
| Under anti-terror legislation rushed through after September 11, phone
| and internet companies will retain their customers' records for longer
| than necessary for billing purposes. The law states that access to
| this information by law-enforcement agencies should only be on the
| grounds of national security or for investigating crime related
| directly or indirectly to national security.
|
| But the controversial Regulation of Investigatory Powers Act (Ripa),
| passed two years ago, allows police, the intelligence services,
| customs and the Inland Revenue to demand access without a warrant or
| court order to any data held by communications providers for a much
| broader range of purposes.
|
| In his written opinion, a summary of which has been seen by the
| Guardian, Mr Emmerson states: "The consequence of these two
| overlapping regimes is that data may be retained for longer than they
| otherwise would be, on the grounds that their retention is necessary
| for the purposes of safeguarding national security, but that the data
| may then be accessed for a variety of collateral public purposes which
| have no connection (direct or indirect) with national security."
|
| He concludes that there is no doubt that retention of communications
| and disclosure of it to the authorities is a breach of the right to
| privacy, and warns there is a "significant risk" that someone
| accessing communications data under Ripa for a purpose unrelated to
| national security would be acting unlawfully.
|
| David Smith, assistant information commissioner, said: "The upshot of
| it all is someone who uses Ripa powers to get access to retained data
| may be breaching human rights law."
|
| He added: "There is agreement generally that the Home Office was in a
| hurry. They wanted to respond to the events of September 11 and they
| were under pressure, but they could have thought through these issues
| more."
|
| Civil liberties and privacy campaigners said the legal opinion
| vindicated their opposition to data retention powers.
|
| John Wadham, the director of Liberty, said: "This demonstrates a
| fundamental failure by the government not only to understand the basic
| principles of human rights but also to listen to parliament, which
| clearly wanted these powers restricted to national security cases."
| Ian Brown, director of the Foundation for Information Policy Research,
| said: "Hopefully this means they will have to legislate again and I
| doubt they will find the time."
|
| This is the second embarrassment for the government over electronic
| communications surveillance in less than two months. In June Mr
| Blunkett was forced to apologise after the Guardian revealed plans to
| give a host of local authorities and quangos the power to demand
| communications data without a warrant. The measure was put on hold.
|
| The Guardian also revealed last November that access to retained data
| would not be restricted to anti-terror investigations, despite
| assurances to the contrary by Mr Blunkett.
|
| Last night a Home Office spokesman said officials were liaising with
| the information commissioner to find a way around the legal
| difficulties.

- -- 
Owen Blacker | Senior Software Developer and InfoSecurity Consultant
See http://www.owens-place.org.uk/pgp.html -- more about my PGP keys
Sig  0xb48e805e | 0e31 ac2a 4ff2 62a0 89da  ddef 4223 99a6 b48e 805e
- --
They that can give up essential liberty to obtain a little temporary
 safety deserve neither liberty nor safety --Benjamin Franklin, 1759

-----BEGIN PGP SIGNATURE-----
Version: PGP 7.0
Comment: Pls see http://www.owens-place.org.uk/pgp.html about my keys

iQA/AwUBPUe6k0Ijmaa0joBeEQJsoQCgyVtGhsYpLb+tDpQ96eubBH+ADrsAnjWl
Lnxe3zxR1Xfywv81lDwXWwBU
=/Q4Q
-----END PGP SIGNATURE-----

_____________________________________________________________________
This e-mail has been scanned for viruses by the WorldCom Internet Managed Scanning Service - powered by MessageLabs. For further information visit http://www.worldcom.com