CHAPTER 12: CIVIL SOCIETY
the highest level (content) judicially authorised. Alternatively, in line with suggestions
of judicial authorisation set out in more detail below, different levels of judge could be
called upon to authorise more intrusive data types. Others did not see “intrusiveness”
as necessarily being linked to the type of data in question, but rather to a broader
question of whether it would be intrusive to the target (which would take account of
not only the data type but importantly also the degree of privacy attaching to the
subject matter, and the steps taken to protect such privacy).
12.42. There were also calls to tighten up a number of the concepts within the authorisation
regime to ensure intrusion only where necessary. In this vein, the need for a proper
definition of “national security” as a legitimate purpose for interception or obtaining
data was emphasised.47 This, it was submitted, should be determined in public
debate, and set out in clear guidance, rather than being purely for the executive to
determine. Further, a few submissions emphasised that there must be clear guidance
on what cannot be accessed or targeted, and is thus excluded from investigation
altogether, such as for example lawful peaceful political activities.
Data retention
12.43. Similar concerns attach to the regime for data retention in the UK as attach to bulk
collection, in particular in relation to the proportionality of the system. However, they
are exacerbated by a commonly held view that the retention regime under DRIPA
2014 is unlawful, as it fails to take account of and/or undermines the CJEU’s judgment
in Digital Rights Ireland.48 Liberty’s view that “mass communications data retention is
undemocratic and unlawful” is shared by other academics and NGOs. In particular, it
is said to be disproportionate,49 and entail insufficient limitations on its scale or
scope.50 That issue will soon come before the High Court.51
12.44. Other options are suggested. A number of submissions urged a regime of targeted
retention, or “preservation” of metadata or communications data.52 Under such a
scheme, a dynamic list of suspects would have their data retained for certain specified
periods of time (e.g. convicted offenders released on licence for offences for which
recidivism is common). While there is a concern that this could stigmatise certain
groups, or encourage profiling, those that espouse this view argue it is more
proportionate than universal retention, as it focuses on a real and known threat. There
are even narrower suggestions, which do not fall foul of such considerations, including
a retention order for specific individuals named in the order based on a specific
investigation or proceedings.53 In response to the suggestion that this would only deal
with known threats, there is a further suggestion of a “centre of analysis” which would
be able to investigate links and generate new targets. Arising across some of these
more targeted suggestions is a view that this targeting should be authorised by judges
on a case-by-case basis, targeted at those “reasonably believed” to be engaged in
47
48
49
50
51
52
53
See the Open Rights Group submission.
This was set out in the submissions of the Law Society and Access.
See the Equalities and Human Rights Commission.
See the Center for Democracy & Technology.
R (David Davis MP and Tom Watson MP) v Secretary of State for the Home Department
CO/3794/2014, not yet heard.
See Professor Peter Sommer, Caspar Bowden, Center for Democracy & Technology.
See the Center for Democracy & Technology.
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