A Home Office spokesperson today told OUT-LAW.COM that there are
no current plans for the Bill containing these measures to make
data retention compulsory, contradicting an article which appears
in today's Financial Times.
Mr Blunkett’s speech to the House of Commons described enabling
ISPs to retain communications data as part of a new Emergency
Anti-Terrorist Bill. He also referred to an accompanying Code of
Practice, but did not clarify what he meant by “enabling” data
retention. Accordingly, his speech left it unclear if the retention
would be compulsory and, if so, for how long.
The Financial Times today reports that the Home Office claimed
that businesses will be forced to retain data for 12 months.
However, a Home Office spokesperson today told OUT-LAW.COM that the
Government is consulting with industry, law enforcement and civil
liberties groups with a view to preparing the Code, which
may contain a “recommendation” that communications service
providers retain communications data for a period of 12 months,
adding that “there are no current plans to make data retention
compulsory.”
According to the spokesperson, it is unlikely that the Code will
be enforceable. Instead, the Government is likely to wait for the
outcome of a draft EU Communications Directive which, if passed in
its present form, would set out the conditions under which Member
States could legislate on data retention. The spokesperson said the
Government will then consider the need for compulsory data
retention in light of the events on 11th September and possibly
prepare suitable legislation pursuant to the Directive. The draft
Directive is unlikely to be concluded this year since, although it
was originally scheduled to be in force by 13th January 2002. The
outcome of the Government’s consultation will influence the terms
of the Emergency Anti-Terrorist Bill, but, again according to the
spokesperson, the Bill is unlikely to make data retention
compulsory.
No new legislation is necessary for police and intelligence
agencies to collect communications data once it is retained by ISPs
and telephone companies. The Regulation of Investigatory Powers Act
2000 allows records to be obtained for broad purposes including
tax, health and safety, public order offences and minor crime,
although the relevant section is not yet in force.
Telecommunications Regulations of 1999 prohibit blanket data
retention, but the Regulations also provide that a Minister of the
Crown can over-ride the prohibition for National Security
purposes.
Caspar Bowden, director of the Foundation for Information Policy
Research criticised the plans announced by Mr Blunkett. Mr Bowden
commented:
"Sensitive data revealing what you read,
where you are, and who you talk to on-line could be collected in
the name of national security. But Mr Blunkett intends to allow
access to this data for purposes nothing to do with fighting
terrorism. Minor crimes, public order and tax offences, attendance
at demonstrations, even 'health and safety' will be legitimate
reasons to siphon sensitive details of private life into government
databases to be retained indefinitely. This would be in flagrant
breach of the first and second Data Protection Principles."
