On 11 December 2012, the Joint Committee on the Draft Communications Data Bill (“Joint Committee”) published its report (“Report”) on the controversial Draft Communications Data Bill (“Bill”). The Report highlights significant privacy concerns raised by the Bill in its current form and concludes that, whilst there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, the current draft Bill is too sweeping and goes further than it need or should for the purpose of providing necessary and justifiable official access to communications data.
The Bill was first announced in the 2012 Queen’s Speech and presented to both UK Houses of Parliament on 14 June 2012 in an attempt to bring the law up to date by allowing law enforcement agencies access to forms of communication data falling outside the scope of existing legislation (principally the Regulation of Investigatory Powers Act 2000). It caused significant controversy due to the broad powers which the Bill would, if adopted, have conferred on a wide range of public bodies to gather information about internet communications made via internet services. The Joint Committee was constituted on 28 June 2012 with a remit to consider the Bill and report to both Houses of Parliament by 30 November 2012.
In the Report, the Joint Committee concludes that the Bill in its present form is ‘overkill’ and does not achieve the desired balance of allowing the security services, law enforcement agencies and a few other public authorities access to the communications data they need in order to protect and serve UK citizens without ‘trampling’ on the privacy of those citizens. The Joint Committee therefore calls for a significant narrowing of the scope of Clause 1 of the Bill (which proposes to give the Home Secretary broad powers to order the retention of any kind of communications data by any communications service provider) to allow only the retention of very specific types of communications data for which a current need has been proven, namely:
- data matching IP addresses to specific users;
- data showing which internet services a user has accessed; and
- data from overseas communications providers providing services in the UK
The Joint Committee also recommends including a super-affirmative procedure to allow Parliament to amend the Home Secretary’s powers if and when the need arose and limiting the number of public authorities able to access communications data to those which make a convincing business case for having such access.
With the aim of enabling the Home Office to present a better Bill to Parliament the Joint Committee makes a range of additional specific proposals in the Report, including:
- New Definitions: new definitions of “communications data” should be included that are narrower in scope, draw a clearer line between data and content and will stand the test of time;
- Consultation: before any revised proposals are bought forward proper consultation should take place with industry, technical experts, civil liberties groups, public authorities and law enforcement bodies;
- Scrutiny of Use: the Interception of Communications Commissioner should scrutinise more closely the use of communications data, his annual reports should be more thorough and he should have more resources at his disposal;
- Sanctions: wilful or reckless misuse of communications data should become a specific offence that is punishable, where appropriate, by imprisonment; and
- Cost Benefit Analysis: as the costs of implementing the draft Bill are likely to be significant, a new more detailed cost benefit analysis must be published at the same time as any redrafted Bill, based on the Committee's recommendations for wider consultation and narrower powers of the Bill.
The Report’s call for a narrower more balanced Bill following a thorough consultation with stakeholders is likely to be welcomed by communications services providers as it will provide them with greater opportunity to voice any remaining concerns before a revised Bill is presented to Parliament and should result in a revised Bill that will be less onerous to comply with. The Joint Committee’s recommendations will also be welcome news for civil liberties campaigners and members of the public who were concerned that the original Bill sought to grant the UK government excessively broad access to information regarding citizens’ use of internet communications technology.