CHAPTER 14: EXPLANATIONS
(d)
In the meantime:
I have assumed in my proposed scheme that a distinction between
content and communications data will persist into the new law, and have
reflected this in my proposals for authorisation.
But in recognition of the fact that some communications data may be
relatively intrusive, I have recommended that in some circumstances,
including but not limited to privileged and confidential material, there
should be judicial determination of an application to access
communications data (Recommendations 68 and 70).
14.12. As to the subdivision of communications data into subscriber information, service
use information and traffic data (6.6 above):
(a)
That division is obscure,9 old-fashioned,10 relevant for only limited purposes11
and not reliably based on the relative intrusiveness of the data sought.12
(b)
The JCDCDB recommended almost three years ago that “a new hierarchy of
data types needs to be developed” and that “[t]here should be an urgent
consultation with industry on changing the definitions and making them relevant
to the year 2012”.13 This has not taken place.
(c)
I reiterate the JCDCDB’s advice.14 Any review should once again be as open
and inclusive as possible, so as to dissipate the suspicion that attaches to any
redefinition of terms in this area. It should also have in mind Recommendations
51 and 56 below.
CAPABILITIES (Recommendations 13-19)
14.13. Capabilities (leaving aside the recently-avowed CNE, which is currently the subject of
litigation in the IPT: 7.64-7.65 above) are controversial in three main respects. These
may be summarised as:
(a)
9
10
11
12
13
14
Compulsory data retention: whether CSPs should be obliged to retain certain
types of communications data relating to all their customers for periods of up to
For example, one of the elements of the definition of s21(4)(b) “Service Use” information is that it
“contains none of the contents of a communication”; yet the contents of a communication are nowhere
defined in the Act.
See, e.g., “subscriber information”: people “subscribe” to telephone services but not usually to apps
used for internet communication.
6.7 above.
Subscriber information can be of a personal nature: 6.6(c) above.
JCDCDB Report, November 2012, paras 169 and 167.
It did seem to me that communications data might usefully and comprehensibly be reclassified by
investigative purpose, taking as a starting point the categories originating in the Data Retention Directive
and currently set out in the Schedule to the Data Retention Regulations 2014 (e.g. “the internet service
used”, “data necessary to identify the date, time and duration of a communication”). Everything else
would be classified as content. But I have stopped short of making a recommendation in those terms:
the issue is highly technical; the suggested approach was variously described by those I tried it out on
as too broad and too narrow, and would require more thought; and in any event the issue should logically
be considered only after the borderline between content and communications data has been decided
upon.
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