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a GreenNet Educational Trust Project Funded
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The Home Office conducted a consultation in June 2003 about the development of a
voluntary code of practice to be applied to the implementation
of data retention.
Background
The
Anti-Terrorism Crime and Security (ATCS) Bill was introduced as emergency legislation following the
attacks in the United States on 11th September 2001.
According to the Home Office, the aim of this document is to extend access to communications data to additional public authorities in order to ‘protect the public from crime.’ Those who are opposed to government proposals cite a number of concerns including: Lack of judicial oversight: According to current practice and proposals, access to documents by public authorities does not require approval by the judiciary in order to determine whether the need to access such information is proportional to the individual's right to privacy. According to Privacy International, for example, ‘BT has fully automated its service to government to the point where any information on any BT customer going back seven years can be obtained by any authorised government agency merely by sending an email.’ Many believe that the current proposal to allow access to communications data without judicial oversight contradicts the European Human Rights Act that states that there must be sufficient reason to interfere with personal data. Cost and liability: Smaller ISPs are especially concerned with the high costs of retaining and, more importantly, servicing requests for data from public authorities. ISPs are also concerned that, if they do subscribe to the voluntary code, they may subsequently be prosecuted by users if their actions are considered unlawful according to human rights law. Extent of surveillance: Authorities that currently have access to communications data make approximately half a million requests for communications data annually (http://www.homeoffice.gov.uk/docs/consult.pdf, Chapter 2, para. 6). According to a number of sources, there has been an exponential rise in data requests in recent years. There is a concern that this number will increase when access to communications data is extended to additional authorities. Data preservation rather than retention: Many ISP’s favor a lower impact scheme of targeted data preservation, where service providers would retain data on specified individuals at the request of the police, rather the current retention proposals which propose to retain data ‘in case’ it becomes useful in the future. Communication service providers have asked the government to show why the current system is insufficient. According to the Home Office, the intention of the ‘Voluntary Code of Practice’ is ‘to outline how communication service providers can assist in the fight against terrorism by meeting agreed time periods for retention of communications data that may be extended beyond those periods for which their individuals company currently retains data for business purposes’ (page 20). According to human rights groups such as Privacy International, ISPs have long complained to government about the subsidy that would be required to make data available to government authorities, where the most critical threat that is being ignored by such groups is, in fact, the privacy rights of their customers. In many ways, a code that seeks to clarify the role and responsibility of service providers in retaining data would be welcome, especially for consumers whose data is often held for unlawful periods and distributed to other agencies. This code, however, should also develop an effective oversight and complaints mechanism to allow redress for users and should engender the trust of users in the security of the system. The issue of trust is critically important for groups that use the Internet to allow, for example, women’s groups that support victims of abuse and trafficking, to have a private space where they are able to express themselves free from the threat of surveillance. For such groups, privacy concerns are critical to their use of the Internet for the purpose of supporting individuals who, if it were not for the medium of the Internet, would otherwise not be given this opportunity. Many ISPs have not developed internal policies on data retention, and are, in fact, accumulating vast amounts of personal information about their customers for periods that are illegal under current Data Protection Act 1998. The government has proposed to subsidise service providers to retain and service access requests for their customers’ data, but what may be more effective, according to one ISP, would be to subsidise the development of ethical codes of practice for the industry on data retention. Such codes, detailing the process by which communication data may be accessed by authorities and under what conditions, would assist in developing the trust and accountability factors necessary for the growth of the industry in this country. 'Know Your Data' is a campaign launched by Privacy International that calls on UK consumers to demand access to their records held by telephone, mobile and Internet companies. Visit the site to obtain model letters that request records from telecommunications companies under the Data Protection Act 1998. You can modify the letters to include your personal and account information and cut and paste the address for the company you are writing.
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