CHAPTER 14: EXPLANATIONS
look: they would not actually have done anything” and that “Missing one or two
paedophiles is a reasonable price to pay for not having blanket intrusion”.
14.20. So while it is evident that German public attitudes (and thus the German political
debate) are in a very different place from their UK equivalents, nothing I heard there
causes me to question the strong law enforcement rationale for data retention that
was pressed on me by UK police and others.
14.21. The CJEU in Digital Rights Ireland agreed that data retention could be “a valuable tool
for criminal investigations” (5.67 above), and did not go so far as to suggest that
compulsory data retention is unlawful. I commented at length on the Digital Rights
Ireland judgment at 5.63-5.79 above. Whilst data retention was described by the
CJEU as a “particularly serious” infringement of fundamental rights (5.78(b) above), I
was referred to no concrete examples, whether in the UK or Germany, of harm to
individuals caused by the retention of communications data in a country where proper
safeguards regulate its use.
14.22. The meaning of Digital Rights Ireland, and its impact if any on DRIPA 2014, will no
doubt be elucidated in the course of the proceedings begun by David Davis MP and
Tom Watson MP: 5.75 above. The constraints of EU and of ECHR law of course have
to be respected. But I am clear in my recommendation that data retention is a useful
capability in fighting all kinds of crime, and that it should be retained in a manner that
is consistent with those legal obligations.
Communications Data Bill
14.23. Recommendations 15-18 relate to the controversial matter of the draft
Communications Data Bill, which was the subject of the JCDCDB Report of December
2012.
14.24. The centrepiece of the draft Bill was clause 1, an excessively broad power which
would have allowed the Secretary of State, by order, to require CSPs to generate and
collect all “necessary” communications data for the services and systems they
provide, to retain it and to facilitate the efficient and effective obtaining of the data by
public authorities.18 This was said to be necessary in order to bridge a growing “data
gap” which meant that even in 2012, “approximately 25% of communications data
required by investigators is unavailable”.19
14.25. The JCDCDB acknowledged the existence of a “data gap”, but (noting the increased
volume of communications data potentially available) resisted the Government’s
attempt to quantify it. It criticised the Home Office for assuming “that a consultation
paper published in April 2009 could justify publication of draft legislation three years
later without further consultation with the public and with those most closely affected
by its proposals”. The JCDCDB concluded:
18
19
JCDCDB Report, November 2012, para 61.
Ibid., para 34.
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