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ON April 27, the British government’s surveillance regime, the Investigatory Powers Act (IPA), was dealt a blow by the High Court in England which ruled that the Snooper’s Charter is unlawful, giving the government six months to fix it.
Lord Justice Rabinder Singh and Justice David Holgate handed down the judgement stating that Part 4 of the IPA which relates to retention of communications data is incompatible with EU law for two principal reasons — that ministers could issue data retention orders without any independent review and that such orders could be undertaken for reasons other than serious crime.
The government has until November 1 2018 to remedy it.
The case, brought by civil rights group Liberty, asked the court to consider the powers granted to the government which has, since December 30 2016, obliged all internet and telecommunication companies to retain data — location information, web activity logs, communications metadata — for 12 months.
And the data goes far beyond what one might initially imagine and includes all search engine activity, every phone call and text message with geographical location for each, personal correspondence, as well as data related to banking, loans, and medical records. Basically, everything that passes through or which is stored on computers and mobile telephones, smart watches, tablets, computers and smart technology is all covered by the IPA data retention mandate.
However, in a blow to Liberty’s case, the judges did not rule that Part 4 in its entirety is inconsistent with EU law because it provides for “general and indiscriminate retention of traffic and location data.”
And on January 30, the British Court of Appeal ruled that the Data Retention and Investigatory Powers Act of 2014 (Dripa), which made way for the Investigatory Powers Act of 2016 (IPA), did not restrict police access to confidential data records for investigations of serious crimes.
Yet January’s decision did state that Dripa was “inconsistent with EU law” because of the absence of “prior review by a court or independent administrative authority.”
Liberty’s series of court challenges to the IPA are demonstrating the illegality of what Liberty director Martha Spurier calls “the government’s extreme mass surveillance regime” which “tells ministers in crystal clear terms that they are breaching the public’s human rights.”
Liberty is now preparing the next phase of its challenge to the IPA — specifically to parts 5, 6 and 7 — which contests government hacking, bulk warrants and bulk personal data set warrants, crowdfunded to cover legal costs.
This is a fight we all need to understand and those who can financially support should donate. In short, it is not necessary for the government to spy on its citizens in order to fight terrorism. All that domestic spying accomplishes, according to Spurier, is to “undermine the very rights, freedoms and democracy terrorists seek to destroy.”
Even beyond the fight against terrorism, data protection has an impact on all areas of our lives given that virtually every piece of personal information is up for grabs and can be mishandled, appropriated and merely applied in ways that the individual has not authorised.
Even Google’s recent defeat over the “right to be forgotten” is crucial to how privacy law impacts our individual freedoms.
For instance, our right to maintain social boundaries, our extension of trust, the way we effect control over our lives and freedom of thought and speech are very much wrapped up in the IPA and similar laws which have recently been enacted in other countries such as the Netherlands, Belgium and Switzerland.
And privacy concerns are hitting the private sector as well. Just last autumn Germany banned smart watches for children amid privacy concerns. Last week, the US Federal Trade Commission (FTC) sent warnings to two foreign app developers in China and Sweden cautioning them over their practices of collecting children’s geolocation data without parental consent.
In the US, such collection of data may very well be in violation of the Children’s Online Privacy Protection Act (COPPA). Additionally, the FTC also sent copies of these letters to the Apple App Store and the Google Play Store since both companies supply these apps to consumers.
While these apps are meant to give parents the ability to track their children’s location, any such benefit is contradicted by the fact that the information is collected and stored in a manner that allows others to access the very same data.
Now that smart homes are becoming a standard of architectural and interior design, this threat to privacy is entering the housing sector. These homes hold devices that are hooked into what is commonly referred to the Internet of Things (IoT) where all devices can be accessed online so you can, for instance, warm your home 30 minutes before arriving and even change the temperature of your fish tank. And if hackers managed to hack and download 10Gb of data from a North American casino through its fish tank thermometer, it is simple by comparison to hack any domestic smart device.
We need to remember the freedom to privacy is paramount in today’s world. We need to remain mindful when using our devices or surfing online that the information we hand over is at risk of data breaches and spying.
No matter the reasons, we must involve ourselves in the fights against corporate and government encroaches to this very fundamental human right of privacy.
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