The UK Investigatory Powers Bill to be published on 4 November comes at a critical time in the development of cloud computing

2 November was the second great, if less well known, British legal birthday of 2015, the 250th anniversary of Lord Camden’s judgment in Entick v Carrington in 1765. 

In the timeless tussle between state surveillance powers and citizens’ rights, this case concerned government attempts to stifle popular opposition voiced in pamphlets and coffee shops, the social media platforms of their day, by harrying the authors through general warrants to search and seize their papers and ransacking their homes.  Lord Camden, in ringing tones, held that:

“by the laws of England, every invasion of private property, be it ever so minute, is a trespass. … If [a man] admits the fact, he is bound by law to show by way of justification that some positive law has empowered or excused him”. 

The judge came down firmly on the side of the citizen, holding that the government agents claiming entry had failed to show proper authority and so were trespassing.

The case has been influential down the years in the UK, the USA and beyond but the principle never jumped from paper to telephone or data communications. This is because, in the UK, entry into homes to seize papers is historically based on the law of trespass, a property right, and the courts have never granted that protection to communications and data, preferring to leave that particular hot potato to the legislature.  This in turn explains why, oddly, there is no common law right to privacy under English law and why it has been left here to the Human Rights Act 1998, the Data Protection Act 1998 and the EU Charter of Fundamental Rights 2010, all comparatively recent and from Europe, to do the heavy lifting.

Meanwhile, communications, surveillance and the security agencies all emerged from behind the veil of the UK state into the open in the 1980s: the government telecoms monopoly was ended (1982) and British Telecom privatised (1984); the first statute regulating surveillance was passed (the Interception of Communications Act 1985, now the Regulation of Investigatory Powers Act 2000); GCHQ (the Government Communications Headquarters) was first avowed (1983), and the internal security service MI5 was put on a statutory footing (1989).

In June 2013, Edward Snowden revealed three large scale bulk data collection programmes – PRISM and UPSTREAM in the USA and TEMPORA in the UK.  Government had initiated these programmes between 2007 and 2011 for what they foresaw would be – and what is now – happening.  This is what has become known as the ‘third platform’ – the combination of:

  • big data (data volumes are increasing by 10 times every 5 years);
  • mobile (internet sensors will rise from 5bn to 2015 to 25bn by 2020);
  • social media; and
  • the move to the Cloud (think $1bn+, 100,000 server+, 1m sq ft+ hyperscale datacentres as the engine rooms of the cloud).

Snowden and the third platform provided the setting for three important European data and communications cases pitting state surveillance powers against citizens’ rights.  In Digital Rights Ireland, the European Court of Justice (CJEU) in April 2014 struck down the EU Data Retention Directive, which required telcos to hold on to all customer metadata (message envelope data), as contrary to the fundamental rights of respect for private life and personal data in Articles 7 and 8 of the EU Charter.  In July 2015, the UK High Court struck down for similar reasons Section 1 DRIPA (the Data Retention and Investigatory Powers Act) 2014, which the UK government had rushed through in four days to fill the gap left by Digital Rights Ireland.  And last month, in the Schrems case, the CJEU again invoked the EU Charter’s fundamental rights to strike down the US/EU safe harbour agreement on personal data transfers between the USA and EU.

All this has set the scene for the new UK Investigatory Powers Bill, to be published on 4 November. This promises to be an epic debate, with the government contending that risks from terrorism, cybercrime, data breaches, the dark net and encryption make broad investigatory powers indispensable and civil liberties groups arguing, in the longest tradition, for strict substantive and procedural safeguards.

What will all this mean for business and consumers?

The start point is a pragmatic approach to understanding data sovereignty risk management: these powers of the state have always been there, always will be.  And it’s not just the USA and UK that have these laws – most countries do. This means that service providers, and hence their customers, are potentially subject to data collection and interception under many national laws including:

  • the laws of the country where the provider is headquartered;
  • the laws of the countries where the provider’s data centres are located;
  • the laws of any country like the UK that claims extra-territorial interception powers;
  • the laws of any country imposing national data domiciliation requirements (like Russia, where since September personal data collected in Russia has to be stored on servers in Russia).    

On this approach, five changes to the current UK investigatory powers legal framework would see significant improvements and increased trust at this time of huge growth in the cloud:

  • first, the new statute should expressly recognise legal privilege – something which did not feature anywhere in the UK framework before this year;
  • second, greater accountability of government agencies through a higher level of judicial involvement in interception and communications data warrant authorisation and review will lead to greater legal certainty and trust;
  • third, greater transparency will allow providers to acknowledge more openly their interactions with state agencies, again increasing consumer trust;
  • fourth, better international cooperation between national agencies – the current MLAT system takes 10 months on average to process a request for emails, far too long for fast moving cyber investigations;
  • fifth, and perhaps most importantly, baking into the new law the fundamental principles and safeguards that the CJEU has said in its recent judgments are so crucial.

As the cloud becomes the new normal, and data sovereignty risks move up the corporate agenda, the data – not just the medium – is the message now.  In their important privacy rights judgments over the last 18 months, the CJEU has shown it grasps this better than anyone.  In another 250 years, will British citizens look back on their words with the same appreciation with which we look back to Lord Camden’s in 1765?