Indiscriminate collection of emails is illegal, court regulations in response to challenge originally brought by David Davis
General and indiscriminate retention of emails and electronic communications by governments is illegal, the EUs highest court has ruled, in a judgment that could trigger challenges against the UKs new Investigatory Powers Act the so-called snoopers charter.
Only targeted interception of traffic and locating data in order to combat serious crime including terrorism is justified, according to a long-awaited decision by the European court of justice( ECJ) in Luxembourg.
The detecting came in response to a legal challenge initially brought by the Brexit secretary, David Davis, when he was a backbench MP, and Tom Watson, Labours deputy leader, over the legality of GCHQs bulk interception of call records and online messages.
Davis and Watson, who were supported by Liberty, the Law Society, the Open Rights Group and Privacy International, had already won a high court victory on such issues, but the government appealed and the case was referredby appeal judges to the ECJ. The lawsuit will now return to the court of appeal to be resolved in terms of UK legislation.
The aim of going to Luxembourg was to clarify EU law on surveillance. The two MPs had argued successfully in the domestic courts that the Data Retention and Investigatory Powers Act( Dripa) 2014 was illegal. Dripa has since been replaced by the Investigatory Powers Act, which comes into force at the end of this month.
At issue was whether there are EU criteria on data retention that need to be respected by member states in domestic legislation. The outcome, though immediately significant, could prove academic once the UK has withdrawn from the EU and the ECJ no longer has jurisdiction over the UK.
In a summary of the ruling, the court said electronic communications let very precise conclusions to be drawn concerning the private lives of persons whose data has been retained.
It added: The interference by national legislation that provides for the retention of traffic data and place data with that right must therefore be considered to be particularly serious.
The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, merely the objective of fighting serious crime is capable of justifying such interference.
Legislation prescribing a general and indiscriminate retention of data surpass the limits of what is strictly necessary and cannot be considered to be justified within a democratic society. Prior authorisation by national courts or independent body to access retained data is required for each official petition, the ECJ said.
Before becoming Brexit minister, Davis travelled to Luxembourg to hear the lawsuit. He argued that the British government was treating the entire nation as suspects by ignoring precautions on retaining and accessing personal communications data.
Davis, one of the most vociferous critics of the states powers to collect data on its citizens, withdrew from the example following his ministerial appointment.
The Dripa case was heard by 15 ECJ magistrates. It coincided with successive inhumanities in Paris, Brussels and Nice that strengthened political demands for expansion of powers to intercept emails and phone calls to help catch Islamic State militants operating on the continent.
Lawyers for the UK government maintained that intercepted communications have been at the heart of every terrorist lawsuit investigated by police and the security services in recent years.
Responding to the ruling, Watson said: At a hour when we face a real and ever-present terrorist threat, the security forces may require access to personal information none of us would normally hand over. Thats why its absolutely vital that proper safeguards are put in place to ensure this power is not abused, as it has been in the recent past.
Most of us can accept that our privacy may occasionally be compromised in the interests of maintaining us safe, but no one would consent to dedicating the police or the governmental forces the power to arbitrarily seize our telephone records or emails to use as they see fit. Its for magistrates , not pastors, to oversee these powers.
Martha Spurrier, director of the human rights group Liberty, said: Todays judgment upholds the rights of ordinary British people not to have their personal lives snooped on without good reason or an independent warrant. The government must now build urgent changes to the Investigatory Powers Act[ IPA] to comply with this.
This is the first serious post-referendum test for our governments commitment to protecting human rights and the rule of law. The UK may have voted to leave the EU but we didnt vote to abandon our rights and freedoms. Liberty is preparing to challenge the IPA in court.
Jim Killock, executive director of the Open Rights Group, said: Blanket surveillance of our communications is intrusive and unacceptable in a democracy.
The government must act quickly to rewrite the IPA or be prepared to go to court again.
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