For supporters of the use of intercept evidence in criminal trials – that’s to say real-time recordings of conspirators convicting themselves out of their own mouths – there is something surprising about some of the reaction to the data retention and investigatory powers bill (the unfortunately monikered Drip), before the House of Lords tomorrow. People involved in serious crime talk to each other, just like the rest of us do. They use telephones and the internet, and they send each other emails.
And if, bizarrely, prosecutors are still not permitted to rely on recordings of conspirators discussing their crimes, at least they have long been allowed to make use of the fact that the conversations took place.
Criminal trials often reflect this. It’s hard to think of a single piece of heavyweight criminal litigation in recent years that hasn’t included communications metadata: not the content, but the fact that calls were made, by and to whom, and when and from where. Sometimes, this is the critical evidence that puts men and women in jail instead of leaving them, say, planning to rob banks or sitting at home building bombs.
This is a million miles from GCHQ’s Operation Tempora and a snoopers’ charter – the bulk collection of everyone’s data for mining by spooks at their leisure, whether any suspicion exists or not. Tempora makes all of us objects of desire to the state, whoever we are. It renders all human discourse the subject of government inquiry without warrant or discrimination and in doing so it redraws the line between citizen and state in an ugly way.
Drip is concerned with something quite different: the ability of the state to target communications metadata under lawful warrant where real suspicion exists that crime is taking place. But in order to gather this evidence for juries, the data has to exist. In the face of a recent European court of justice ruling that present arrangements are unlawful, the bill requires communications service providers to retain their records for 12 months, as many of them have in the past and as they often do anyway for their own business purposes. If a warrant is obtained, then as part of a criminal investigation access can be obtained by the police – and it has been for years.
In the old days, of course, we only had phone records. Now we’ve got email and the internet. So should we have access only to phone data? Should emails be excluded from criminal trials? Or social media? Or any communications data that happens to be routed through a foreign server? It is difficult to see why a cloak of immunity should settle over any part of the internet where it’s used to advance crime. Instead, we should govern more carefully the circumstances in which data left behind may be accessed and deployed by the state – and we should do so with legislation that understands the technology.
As it happens, Drip offers this more liberal response. Ever since the name Snowden first appeared on front pages, there have been calls for a fundamental review of Ripa, the elderly legislation that governs communications intercepts by the state. Conceived before the Internet and twitter, it provides no plausible regulation for the twenty-first century. Its ignorance gives securocrats something close to a free hand. Indeed the security establishment’s shameless attempts to weave cover for Tempora from its badly fraying provisions are the best argument for new laws that will properly constrain them with a healthier dose of proportion.The full review of Ripa that accompanies Drip is a powerful win.
And so too is the creation of a privacy and civil liberties oversight board, modelled on the body put in place by the US 9/11 Commission. Ever since John Reid purposefully brought security agency policy-makers into the heart of the Home Office with the creation of the Office for Security and Counter-Terrorism in 2007, we have badly needed a counterweight to the constant barrage of agency-inspired initiatives crashing out from his sly invention. Along with new annual transparency reviews, the new board can bring fresh focus on the importance of balance in security policy, and the need to protect the fundamentals of our constitution along with lives and the fabric of our society.
We have an ignoble record in this country when it comes to emergency legislation. But with some companies preparing to delete communications data after the ECJ ruling, there is real urgency here. Restating common practice, containing a sunset clause and bringing with it important and surprising liberal reforms, this bill is far from a Home Office confection: indeed, it is one of the better products of coalition.
