CHAPTER 12: CIVIL SOCIETY
(d)
It is arbitrary, since it is often impossible to tell at the moment of interception
whether a communication is “external” or not.
(e)
Some are further concerned that the distinction is discriminatory (both in
relation to those abroad and to minority groups within the UK).25
(f)
The operation of s16 is far from clear. There is concern from some that the
protection it offers may be more apparent than real; as it appears to provide for
considerable searching and examination of data on those within the UK, as long
as the selection is not on the basis of a factor referable to an individual known
to be in the UK.
12.26. Thus, many of the submissions I received were of the view that the distinction should
be abolished. In particular, it was said that this would: i) prevent any discrimination or
unnecessary difference in treatment based on nationality or geography; ii) remove the
arbitrariness and illogicality of the distinction in a world of globally routed
communications; and iii) clarify what exactly is undertaken pursuant to different
warrants. In answer to the point that some distinction based on either citizenship or
geography appears ubiquitous in surveillance regimes globally, actors suggest that
this should not stop the UK becoming a leader in this field by expunging the distinction.
At the very least, most would urge a publicly developed and technologically sound
distinction.
12.27. Many submissions also highlighted the need to expunge the distinction between the
content of communications and communications data, a distinction which is said to be
artificial.26 That distinction was premised on an assumption that content is more
personal, more valuable, and more private than communications data. But that is now
challenged:27
25
26
27
28
(a)
The volume of communications data has increased exponentially, and there are
increasingly sophisticated means of data analysis which can provide significant
information through combining and matching data.
(b)
This is matched by the increased utility, richness and inherent privacy of
information contained in communications data. As explained by Open Rights
Group, there is a qualitative difference in the type of communications data that
is available now to that which was available 15 years ago.
(c)
It may also be the case that in the context of internet communications the
distinction is less clear in terms of determining what is content and what is
communications data.28
A concern highlighted by Rights Watch (UK) and the Equality and Human Rights Commission.
As set out, for example, in submissions by the Guardian Media Group, the Equality and Human Rights
Commission and Liberty.
This view is one gaining in prominence: in the recent SURVEILLE Report, it was noted that “the
distinction between “content data” and metadata …is rapidly fading away in modern network
environment” , p. 4.
As raised by, amongst others, IOCCO.
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