UK Appeals Court holds government’s mass digital surveillance regime as unlawful

Court of Appeal (Civil Division): In a case brought against UK government’s mass digital surveillance regime which was spearheaded by the Data Retention and Investigatory Powers Act, 2014 (DRIPA), a 3 judge Bench of Sir Geoffrey Vos, Lord Justice Patten and Lord Justice Lloyd Jones held that such a regime is unlawful as it did not restrict the accessing of confidential personal phone and web browsing records to investigations of serious crime, and allowed public bodies to grant themselves access to such information even when no serious crime had occurred.

DRIPA was introduced by the UK Government in order to allow security services to continue to have access to phone and internet records of individuals; and also permitting the security services through the Secretary of State to retain communications data in order to fight terrorism and other crimes. However concerns were raised by various Members of Parliament including Labour Party MP, Tom Watson (who amongst others initiated the legislation) and several human rights group as the legislation was seen as a threat to an individual’s right to privacy. Indeed several reports had cropped up highlighting the misuse of DRIPA. However after its expiry in 2016, the Government enacted The Investigatory Powers Act 2016 (IPA) which was in line with the previous legislation, so much so that it came to be known as the Snooper’s Charter. DRIPA was found to be in conflict with Articles 7 and 8 of the Human Rights Convention by the High Court of London. The government preferred an appeal and the Court of Appeal referred the case to the European Court of Justice for clarification. The ECJ in its ruling, agreed with the High Court, and ordered the government to introduce greater safeguards to protect people’s privacy.

The Bench stated that the powers in the Data Retention and Investigatory Powers Act 2014, which paved the way for the snooper’s charter is inconsistent with EU law to the extent that for the purpose of prevention, investigation and detection and prosecution of criminal offences, it permitted access to retained data, where the object pursued by that access was not solely restricted to fighting serious crime. Furthermore there was a lack of a prior review by a court or an independent administrative authority, therefore the regime cannot be deemed to be lawful. The challenge to the present surveillance legislation shall be decided in February. [Secretary of State for the Home Department v. Tom Watson, [2018] EWCA Civ 70, decided on 30.01.2018]

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