Data retention directive "invalid"

[Peter Fairbrother]

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.


>> 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.

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, 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.

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.



-- Peter Fairbrother