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Codes of Practice on ‘Communications Data’
Using powers under RIPA, the Home Office has issued a Code of Practice on the Acquisition and Disclosure of Communications Data. After undertaking a public consultation process in 2006, this Code was most recently revised in 2007.
The Home Office has also issued a Voluntary Code on Retention of Communications Data by private CSPs, using powers under Part 11 of the Anti-Terrorism, Crime and Security Act 2001 . The Code, aimed at bodies such a phone companies and ISPs, is merely voluntary and advocates retention of ‘communications data’ for certain periods of time.
For a limited amount of time (which was extended twice), the Home Secretary enjoyed a power under the Anti-Terrorism Act to make an order requiring that private communications companies comply with certain rules when retaining “communications data” under RIPA if, in her opinion, the voluntary code proved ineffective. At the end of 2007, that power lapsed without any mandatory directions under the Anti-Terrorism Act having being imposed. So unless Parliament enacts new statutory powers, the voluntary Code will continue to provide a soft form of regulation with respect to retention.
Scrutinizing interceptions of ‘communications data’
The authorisation process is subject to the monitoring of the Interception of Communications Commissioner. Complaints about such authorisation may be brought before the Investigatory Powers Tribunal in the same way that applies to interceptions. This system of accountability is subject to the same weaknesses identified in respect of interception.
Although RIPA has now been in force for several years, it still remains to be seen whether the broader grounds which appear to permit disclosure of potentially private information in the form of ‘communications data’, and the absence of any real regulation of these authorisations and notices for disclosure of such data by an independent person or body, will prove to be compatible with the right to respect for privacy under Article 8 – particularly since private companies are instrumental in the process by which such information is retained and shared . Parliament’s Joint Committee of Human Rights (JCHR) expressed some concern back in 2003 that the private communications companies expected to retain this information were not subject to control or scrutiny by the UK’s human rights legislation: in that context, the JCHR was also unhappy that Parliament had been given insufficient time to consider the implications of the Code.
The Home Office has also issued a Voluntary Code on Retention of Communications Data by private CSPs, using powers under Part 11 of the Anti-Terrorism, Crime and Security Act 2001 . The Code, aimed at bodies such a phone companies and ISPs, is merely voluntary and advocates retention of ‘communications data’ for certain periods of time.
For a limited amount of time (which was extended twice), the Home Secretary enjoyed a power under the Anti-Terrorism Act to make an order requiring that private communications companies comply with certain rules when retaining “communications data” under RIPA if, in her opinion, the voluntary code proved ineffective. At the end of 2007, that power lapsed without any mandatory directions under the Anti-Terrorism Act having being imposed. So unless Parliament enacts new statutory powers, the voluntary Code will continue to provide a soft form of regulation with respect to retention.
Scrutinizing interceptions of ‘communications data’
The authorisation process is subject to the monitoring of the Interception of Communications Commissioner. Complaints about such authorisation may be brought before the Investigatory Powers Tribunal in the same way that applies to interceptions. This system of accountability is subject to the same weaknesses identified in respect of interception.
Although RIPA has now been in force for several years, it still remains to be seen whether the broader grounds which appear to permit disclosure of potentially private information in the form of ‘communications data’, and the absence of any real regulation of these authorisations and notices for disclosure of such data by an independent person or body, will prove to be compatible with the right to respect for privacy under Article 8 – particularly since private companies are instrumental in the process by which such information is retained and shared . Parliament’s Joint Committee of Human Rights (JCHR) expressed some concern back in 2003 that the private communications companies expected to retain this information were not subject to control or scrutiny by the UK’s human rights legislation: in that context, the JCHR was also unhappy that Parliament had been given insufficient time to consider the implications of the Code.
