European Court Of Justice Rules Against UK's Mass Surveillance Program

from the will-it-matter-after-brexit? dept

Over the summer, we noted that the Advocate General for the European Court of Justice had sort of punted on the issue of whether or not the UK's Data Retention and Investigatory Powers Bill (DRIPA) was actually legal. Thankfully, the final ruling is much clearer: "general and indiscriminate retention" of emails and other electronic communications is illegal in the EU according to the court. The only thing that is allowed is targeted interception, used to combat "serious crime."

This is a pretty big deal, as the original recommendation from the Advocate General had suggested that DRIPA might be found legal. Of course, DRIPA is in the process of being superseded by the even worse Investigatory Powers Bill, better known as the Snooper's Charter. If DRIPA violates the law, than the Snooper's Charter almost certainly does so at an even greater level. Of course, there is some irony in all of this, in that the case that came to the CJEU was brought by a Member of Parliament, David Davis, who is now the "Brexit Secretary," meaning that he's helping to organize the process by which the UK will be removed from the EU... such that it may not even matter what the EU's Court of Justice has to say on the matter.

The UK has also made it clear it's going to appeal the decision, meaning that it will get to drag this process out as long as possible, potentially until the Brexit process is completed, at which point the ruling will not matter.

Still, it should at least raise question in the UK about why their politicians are granting the government powers to snoop on every member of the public at a level that goes way beyond what is considered appropriate.

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  • icon
    DannyB (profile), 21 Dec 2016 @ 12:38pm

    Spying eyes in the sky

    question in the UK about why their politicians are granting the government powers to snoop on every member of the public at a level that goes way beyond what is considered appropriate.

    Doesn't the UK already have big brother cameras spying on everyone, everywhere beyond what most would consider appropriate?

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 22 Dec 2016 @ 12:48am

      Re: Spying eyes in the sky

      Depends on which scaremongering reports you read. For example, the most famous is one that counted all private & public cameras in a single road in London and extrapolated that across the whole of the UK as public cameras. That's ridiculous in numerous ways, but most people only remember the scary headlines when it was reported.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Dec 2016 @ 4:56am

      Re: Spying eyes in the sky

      They say most of the cameras are turned off.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Dec 2016 @ 1:05pm

    And the UK promptly thumbs its nose at the Court of Justice.

    So what are they going to do about it?

    reply to this | link to this | view in chronology ]

  • icon
    Arthur Moore (profile), 21 Dec 2016 @ 1:10pm

    It still matters

    Even with brexit it still matters. The EU has been pretty strong in claiming that want to protect their citizens privacy.[1] Especially from foreign actors.

    If brexit does happen I fully expect banking regulations reinforcing the EUs privacy requirement. All the banks would then be required to move their servers to a country with more privacy protections.

    It would be a huge FU to the UK, for obvious reasons. Heck it might happen anyways if the UK appeal loses and they don't repeal the law.


    [1]If I remember what Germany's doing correctly, also pretty hypocritical too. Everyone here at TD knows what can be done with "just metadata".

    reply to this | link to this | view in chronology ]

  • identicon
    Magnus Lundberg, 21 Dec 2016 @ 1:40pm

    In related news...

    The Court also ruled today on exactly the same issue for Sweden.

    In our case it was the Swedish ISP Tele2 who challenged our version of the snoopers charter ("Datalagringsdirektivet"). They where backed by most other Swedish ISPs as well as by the Swedish bar association ("Advokatsamfundet").

    This is just the last of a long line of cases where ISPs in Sweden fight anyone who wants to turn them into a tool for more or less questionable legal action. You might recall Bahnhofs fight against Spridningskollen, a copyright troll, that Techdirt reported on. (They won. Gotia Law, the firm behind them, shut down their operation without sending out a single extortion letter.)

    At least one ISP, Telenor, has already announced that they will stop collecting data on their costumers, effective immediately. Most others are expected to follow soon.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Dec 2016 @ 2:45pm

      Re: In related news...

      The Tele2 judgement is a lot more murky about where to draw the line which is a shame since it deals with how ISPs should behave against customers.

      In other words: If what the ISP is doing is illegal data-collection, the government cannot force an ISP to hand over such information for obvious reasons. That in turn will be forcing the government to store data, themself and waste time on inferring information instead of gathering evidence. Eventually the EU court is effectively making it hard tending towards impossible for police to get into the big "data scouring for criminals" business.

      reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 21 Dec 2016 @ 2:02pm

    The fact that the court found that DRIPA was illegal and that the mass level of spying on the citizens is wrong, the problem is that the UK wont put a limit on what DRIPA can hoover up, they want it all.

    Even though the court says it is illegal the UK government has not intention of stopping the mass spying and hoover up of information that they have been doing and are loathe to give it up.

    If the Courts still find it illegal , the UK Government will just either hide what they are doing better, or they will enact legislation to keep on spying and hoovering all the information they can.

    This is no different than what Government's around the world are doing right now, and will continue to expand these programs all in the name of security and fighting terrorism and what ever else they deem the cause to be so they can continue on.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Dec 2016 @ 5:17pm

    Terrorism is a serious crime. Everyone is a potential terrorist. All potential terrorists can be targeted.

    Well that wasn't hard to justify. [sarcasm]

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Dec 2016 @ 3:28am

      Re:

      Each year in the UK the deaths from drunk driving total about the same number of deaths from the 911 terrorist attacks. Clearly drunk driving is a much larger imminent threat then terrorists.

      If they used the spying powers to stop drinking and driving they could actually save some lives! Instead they use their mass surveillance to supposedly protect citizens from one of the things least likely to kill them. If mass surveillance is not being used to save the largest number of lives possible then just exactly what is it being used for?

      Metadata to identify *potential* drunk driver is pretty simple:
      Cell phone of car owner is located at a bar
      Credit/debit card of car owner used to purchase alcohol at a bar
      Cell phone of car owner who purchased alcohol at a bar is located leaving the bar.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 22 Dec 2016 @ 3:53am

        Re: Re:

        "Metadata to identify *potential* drunk driver is pretty simple:
        Cell phone of car owner is located at a bar
        Credit/debit card of car owner used to purchase alcohol at a bar
        Cell phone of car owner who purchased alcohol at a bar is located leaving the bar."

        ...and like the "terrorist" list, that's next to useless and will generate a huge number of false positives. For example:

        - "Car owner" doesn't mean that person is driving the car (nor that the car itself is even at the bar)
        - Purchase of alcohol doesn't mean the purchaser is drinking it
        - Your solution doesn't track people paying cash to buy drinks (still very common in the UK)
        - I notice that it also doesn't track the car leaving the bar, only the fact that someone owning a car is leaving it (meaning you're also tracking people who walk, use public transport or take a cab home, thus doing the opposite of what you're trying to track)

        Plus, existing techniques exist that are very good at catching such people without the need to invade the privacy of everyone who likes a drink but also happens to drive. Your proposal will lead to a wide net costing more but not catching more actual drunk drivers, at the simple expense of the privacy and rights of everyone in the country.

        Actually, that's a good parallel to what's been demanded - unnecessary powers that will invade the privacy of lots of people, raising lots of false flags and not achieve anything more than existing police powers would allow. A shame the gutter press will push this as an example of Brussels interference showing why Brexit should happen as soon as possible, when in my mind it's a great example of how badly the country will be screwed if left to the current shower without it.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Dec 2016 @ 7:09am

        Re: Re:

        And more deaths result from non-drunk driving than from drunk driving.

        reply to this | link to this | view in chronology ]

  • icon
    Rabbit80 (profile), 22 Dec 2016 @ 3:02am

    It's irrelevant anyway

    Since the snoopers charter allows the government to lie in court and prohibits questioning the evidence gathered in this way, it makes no difference if they even collect the data in the first place.. they can just make shit up which can't be questioned!

    See section 56:
    Exclusion of matters from legal proceedings etc.

    (1)No evidence may be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings or Inquiries Act proceedings which (in any manner)—

    (a)discloses, in circumstances from which its origin in interception-related conduct may be inferred—

    (i)any content of an intercepted communication, or

    (ii)any secondary data obtained from a communication, or

    (b)tends to suggest that any interception-related conduct has or may have occurred or may be going to occur.


    http://www.legislation.gov.uk/ukpga/2016/25/section/56/enacted

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Dec 2016 @ 3:41am

      Re: It's irrelevant anyway

      So the Inner Party of Air Strip One in the Providence of Oceania has created the Ministry of Truth as forseen by the great prophet Orwell.

      Amazing times we live in.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Dec 2016 @ 4:54am

    The most ridiculous part of the bill is...

    "British politicians exempt themselves from warrantless spying under the Snoopers Charter"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Howard II, 22 Dec 2016 @ 5:03am

    Sadly, not many people (relatively speaking) in the UK give a flying fuck about the snooper's charter.

    Much anger about Brexit, yes, but that's because a week of drinking and debauchery in Faliraki will be more expensive and they might have to fill in a form.
    That it will remove the only possible impediment to this legislation (Her Majesty's Opposition - the Labour party - being utterly spineless) simply doesn't register.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 23 Dec 2016 @ 12:33pm

    Brexit

    Would it be untoward to suggest that this specific ruling was the whole justification for Brexit?

    reply to this | link to this | view in chronology ]


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