Data retention directive "invalid"

[Roland Perry]

In article <5347F690.8090603 at zen.co.uk>, Peter Fairbrother 
<zenadsl6186 at zen.co.uk> writes
>On 11/04/14 14:48, Roland Perry wrote:
>> In article <5347E59D.30904 at zen.co.uk>, Peter Fairbrother
>> <zenadsl6186 at zen.co.uk> writes
>>>> Describing as either "distribution" or a "contract" is wrong.
>>>
>>> I'm pretty sure there are contracts between the Home Office and the
>>> SPOCs regarding eg payments for storing data, payments for access to
>>> stored data, and so on.
>>
>> SPoCs are employed by the police to format requests made under RIPA (and
>> maybe other laws too).
>>
>> Their opposite numbers within industry are generally known as "police
>> liaison units".
>
>Thanks, I didn't know that.
>
>But I'm pretty sure they have some sort of contract or agreement with 
>whoever pays them.

There's a cost recovery framework that some have agreed with the Home 
Office, but I wouldn't call it a contract.

>>> Ok, I'll rephrase - an ISP doesn't have to give Plod data for criminal
>>> investigation purposes even if the paperwork is otherwise fine and
>>> RIPA says they have to,  because that would be disproportionate.
>>>
>>> That any better?
>>
>> No, the proportionality test only applies to the request, not the reason
>> they might have had the data to start with.
>
>If you mean the proportionality test specified in RIPA, yes perhaps. 
>Though even that applies only to each individual request, and is not as 
>objective as the UCJ would like, as it's just the opinion of the 
>issuing officer.

It's usually the opinion of the SPoC and the requesting officer, as well 
as the countersigning officer.

>However there is also a wider test, which includes the entire regime, 
>and which actually applies to almost everything. It was under this 
>wider test that the Directive was made invalid,

Ho, because that was about retention, not disclosure.

> and there is a very good case to say that the relevant parts of RIPA 
>are also invalid, and for the same reason - they are a disproportionate 
>interference with Article 8 rights.

RIPA was introduced expressly to address the ECHR concerns, that's what 
the "R" is - "Regulation of". The proportionality aspect of disclosure 
can of course be questioned, but that's an entirely different exercise 
to the current Data Retention issue.

>It's not just the Directive or the Regulations which have been cast 
>into doubt or darkness, the ATCSA CoP and parts of RIPA (and some other 
>laws too, I'm sure) are also in question as well.

That's a bit of a stretch.
-- 
Roland Perry