Tag: privacy

Surveillance powers to be kept alive via DRIP

Posted on | by Robin Hopkins

The legal framework underpinning state surveillance of individuals’ private communications is in turmoil, and it is not all Edward Snowden’s fault. As I write this post, two hugely important developments are afoot.

Prism/Tempora

The first is the challenge by Privacy International and others to the Prism/Tempora surveillance programmes implemented by GCHQ and the security agencies. Today is day 2 of the 5-day hearing before the Investigatory Powers Tribunal. To a large extent, this turmoil was unleashed by Snowden.

DRIP – the background

The second strand of the turmoil is thanks to Digital Rights Ireland and others, whose challenge to the EU’s Data Retention Directive 2006/24 was upheld by the CJEU in April of this year. That Directive provided for traffic and location data (rather than content-related information) about individuals’ online activity to be retained by communications providers for a period of 6-24 months and made available to policing and security bodies. In the UK, that Directive was implemented via the Data Retention (EC Directive) Regulations 2009, which mandated retention of communications data for 12 months.

In Digital Rights Ireland, the CJEU held the Directive to be invalid on the grounds of incompatibility with the privacy rights enshrined under the EU’s Charter of Fundamental Rights. Strictly speaking, the CJEU’s judgment (on a preliminary ruling) then needed to be applied by the referring courts, but in reality the foundation of the UK’s law fell away with the Digital Rights Ireland judgment. The government has, however, decided that it needs to maintain the status quo in terms of the legal powers and obligations which were rooted in the invalid Directive.

On 10 July 2014, the Home Secretary made a statement announcing that this gap in legal powers was to be plugged on a limited-term basis. A Data Retention and Investigatory Powers (DRIP) Bill would be put before Parliament, together with a draft set of regulations to be made under the envisaged Act. If passed, these would remain in place until the end of 2016, by which time longer-term solutions could be considered. Ms May said this would:

“…ensure, for now at least, that the police and other law enforcement agencies can investigate some of the criminality that is planned and takes place online. Without this legislation, we face the very prospect of losing access to this data overnight, with the consequence that police investigations will suddenly go dark and criminals will escape justice. We cannot allow this to happen.”

Today, amid the ministerial reshuffle and shortly before the summer recess, the Commons is debating DRIP on an emergency basis.

Understandably, there has been much consternation about the extremely limited time allotted for MPs to debate a Bill of such enormous significance for privacy rights (I entitled my post on the Digital Rights Ireland case “Interfering with the fundamental rights of practically the entire European population”, which is a near-verbatim quote from the judgment).

DRIP – the data retention elements

The Bill is short. A very useful summary can be found in the Standard Note from the House of Commons Library (authored by Philippa Ward).

Clause 1 provides power for the Secretary of State to issue a data retention notice on a telecommunications services provider, requiring them to retain certain data types (limited to those set out in the Schedule to the 2009 Regulations) for up to 12 months. There is a safeguard that the Secretary of State must consider whether it is “necessary and proportionate” to give the notice for one or more of the purposes set out in s22(2) of RIPA.

Clause 2 then provides the relevant definitions.

The Draft Regulations explain the process in more detail. Note in particular regulation 5 (the matters the Secretary of State must consider before giving a notice) and regulation 9 (which provides for oversight by the Information Commissioner of the requirements relating to integrity, security and destruction of retained data).

DRIP – the RIPA elements

DRIP is also being used to clarify (says the government) or extend (say some critics) RIPA 2000. In this respect, as commentators such as David Allen Green have pointed out, it is not clear why the emergency legislation route is necessary.

Again, to borrow the nutshells from the House of Commons Library’s Standard Note:

Clause 3 amends s5 of RIPA regarding the Secretary of State’s power to issue interception warrants on the grounds of economic well-being.

Clause 4 aims to clarify the extra-territorial reach of RIPA in in relation to both interception and communications data by adding specific provisions. This confirms that requests for interception and communications data to overseas companies that are providing communications services within the UK are subject to the legislation.

Clause 5 clarifies the definition of “telecommunications service” in RIPA to ensure that internet-based services, such as webmail, are included in the definition.

Criticism

The Labour front bench is supporting the Coalition. A number of MPs, including David Davis and Tom Watson, have been vociferous in their opposition (see for example the proposed amendments tabled by Watson and others here). So too have numerous academics and commentators. I won’t try to link to all of them here (as there are too many). Nor can I link to a thorough argument in defence of DRIP (as I have not been able to find one). For present purposes, an excellent forensic analysis comes from Graham Smith at Cyberleagle.

I don’t seek to duplicate that analysis. It is, however, worth remembering this: the crux of the CJEU’s judgment was that the Directive authorised such vast privacy intrusions that stringent safeguards were required to render it proportionate. In broad terms, that proportionately problem can be fixed in two ways: reduce the extent of the privacy intrusions and/or introduce much better safeguards. DRIP does not seek to do the former. The issue is whether it offers sufficient safeguards for achieving an acceptable balance between security and privacy.

MPs will consider that today and Peers later this week. Who knows? – courts may even be asked for their views in due course.

Robin Hopkins @hopkinsrobin

Some results may have been removed under data protection law in Europe. Learn more.

Posted on | by Robin Hopkins

This is the message that now regularly greets those using Google to search for information on named individuals. It relates, of course, to the CJEU’s troublesome Google Spain judgment of 13 May 2014.

I certainly wish to learn more.

So I take Google up on its educational offer and click through to its FAQ page, where the folks at Google tell me inter alia that “Since this ruling was published on 13 May 2014, we’ve been working around the clock to comply. This is a complicated process because we need to assess each individual request and balance the rights of the individual to control his or her personal data with the public’s right to know and distribute information”.

The same page also leads me to the form on which I can ask Google to remove from its search results certain URLs about me. I need to fill in gaps like this: “This URL is about me because… This page should not be included as a search result because…” 

This is indeed helpful in terms of process, but I want to understand more about the substance of decision-making. How does (and/or should) Google determine whether or not to accede to my request? Perhaps understandably (as Google remarks, this is a complicated business on which the dust is yet to settle), Google doesn’t tell me much about that just yet.

So I look to the obvious source – the CJEU’s judgment itself – for guidance. Here I learn that I can in principle ask that “inadequate, irrelevant or no longer relevant” information about me not be returned through a Google search. I also get some broad – and quite startling – rules of thumb, for example at paragraph 81, which tells me this:

“In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”

So it seems that, in general (and subject to the sensitivity of the information and my prominence in public life), my privacy rights trump Google’s economic rights and other people’s rights to find information about me in this way. So the CJEU has provided some firm steers on points of principle.

But still I wish to learn more about how these principles will play out in practice. Media reports in recent weeks have told us about the volume of ‘right to be forgotten’ requests received by Google.

The picture this week has moved on from volumes to particulars. In the past few days, we have begun to learn how Google’s decisions filter back to journalists responsible for the content on some of the URLs which objectors pasted into the forms they sent to Google. We learn that journalists and media organisations, for example, are now being sent messages like this:

“Notice of removal from Google Search: we regret to inform you that we are no longer able to show the following pages from your website in response to certain searches on European versions of Google.”

Unsurprisingly, some of those journalists find this puzzling and/or objectionable. Concerns have been ventilated in the last day or two, most notably by the BBC’s Robert Peston (who feels that, through teething problems with the new procedures, he has been ‘cast into oblivion’) and The Guardian’s James Ball (who neatly illustrates some of the oddities of the new regime). See also The Washington Post’s roundup of UK media coverage.

That coverage suggests that the Google Spain ruling – which made no overt mention of free expression rights under Article 10 ECHR – has started to bite into the media’s freedom. The Guardian’s Chris Moran, however, has today posted an invaluable piece clarifying some misconceptions about the right to be forgotten. Academic commentators such as Paul Bernal have also offered shrewd insights into the fallout from Google Spain.

So, by following the trail from Google’s pithy new message, I am able to learn a fair amount about the tenor of this post-Google Spain world.

Inevitably, however, given my line of work, I am interested in the harder edges of enforcement and litigation: in particular, if someone objects to the outcome of a ‘please forget me’ request to Google, what exactly can they do about it?

On such questions, it is too early to tell. Google says on its FAQ page that “we look forward to working closely with data protection authorities and others over the coming months as we refine our approach”. For its part, the ICO tells us that it and its EU counterparts are working hard on figuring this out. Its newsletter from today says for example that:

“The ICO and its European counterparts on the Article 29 Working Party are working on guidelines to help data protection authorities respond to complaints about the removal of personal information from search engine results… The recommendations aim to ensure a consistent approach by European data protection authorities in response to complaints when takedown requests are refused by the search engine provider.”

So for the moment, there remain lots of unanswered questions. For example, the tone of the CJEU’s judgment is that DPA rights will generally defeat economic rights and the public’s information rights. But what about a contest between two individuals’ DPA rights?

Suppose, for example, that I am an investigative journalist with substantial reputational and career investment in articles about a particular individual who then persuades Google to ensure that my articles do not surface in EU Google searches for his name? Those articles also contain my name, work and opinions, i.e. they also contain my personal data. In acceding to the ‘please forget me’ request without seeking my input, could Google be said to have processed my personal data unfairly, whittling away my online personal and professional output (at least to the extent that the relevant EU Google searches are curtailed)? Could this be said to cause me damage or distress? If so, can I plausibly issue a notice under s. 10 of the DPA, seek damages under s. 13, or ask the ICO to take enforcement action under s. 40?

The same questions could arise, for example, if my personal backstory is heavily entwined with that of another person who persuades Google to remove from its EU search results articles discussing both of us – that may be beneficial for the requester, but detrimental to me in terms of the adequacy of personal data about me which Google makes available to the interested searcher.

So: some results may have been removed under data protection law in Europe, and I do indeed wish to learn more. But I will have to wait.

Robin Hopkins @hopkinsrobin

GCHQ’s internet surveillance – privacy and free expression join forces

Posted on | by Robin Hopkins

A year ago, I blogged about Privacy International’s legal challenge – alongside Liberty – against GCHQ, the Security Services and others concerning the Prism/Tempora programmes which came to public attention following Edward Snowden’s whistleblowing. That case is now before the Investigatory Powers Tribunal. It will be heard for 5 days, commencing on 14 July.

Privacy International has also brought a second claim against GCHQ: in May 2014, it issued proceedings concerning the use of ‘hacking’ tools and software by intelligence services.

It has been announced this week that Privacy International is party to a third challenge which has been filed with the Investigatory Powers Tribunal. This time, the claim is being brought alongside 7 internet service providers: GreenNet (UK), Chaos Computer Club (Germany); GreenHost (Netherlands); Jimbonet (Korea), Mango (Zimbabwe), May First/People Link (US) and Riseup (US).

The claim is interesting on a number of fronts. One is the interplay between global reach (see the diversity of the claimants’ homes) and this specific legal jurisdiction (the target is GCHQ and the jurisdiction is the UK – as opposed, for example, to bringing claims in the US). Another is that it sees private companies – and therefore Article 1 Protocol 1 ECHR issues about property, business goodwill and the like – surfacing in the UK’s internet surveillance debate.

Also, the privacy rights not only of ‘ordinary’ citizens (network users) but also specifically those of the claimants’ employees are being raised.

Finally, this claim sees the right to free expression under Article 10 ECHR – conspicuously absent, for example, in the Google Spain judgment – flexing its muscle in the surveillance context. Privacy and free expression rights are so often in tension, but here they make common cause.

The claims are as follows (quoting from the claimants’ press releases):

(1) By interfering with network assets and computers belonging to the network providers, GCHQ has contravened the UK Computer Misuse Act and Article 1 of the First Additional Protocol (A1AP) of the European Convention of Human Rights (ECHR), which guarantees the individual’s peaceful enjoyment of their possessions

(2) Conducting surveillance of the network providers’ employees is in contravention of Article 8 ECHR (the right to privacy) and Article 10 ECHR (freedom of expression)

(3) Surveillance of the network providers’ users that is made possible by exploitation of their internet infrastructure, is in contravention of Arts. 8 and 10 ECHR; and

(4) By diluting the network providers’ goodwill and relationship with their users, GCHQ has contravened A1AP ECHR.

Robin Hopkins @hopkinsrobin

Privacy, electronic communications and monetary penalties: new Upper Tribunal decision

Posted on | by Robin Hopkins

Panopticon reported late last year that the First-Tier Tribunal overturned the first monetary penalty notice issued by the Information Commissioner for breaches of the Privacy and Electronic Communications Regulations 2003. This was the decision in Niebel v IC (EA/2012/0260).

The Information Commissioner appealed against that decision. The Upper Tribunal gave its decision on the appeal yesterday: see here IC v Niebel GIA 177 2014. It dismissed the Commissioner’s appeal and upheld the First-Tier Tribunal’s cancellation of the £300,000 penalty imposed for the sending of marketing text messages.

I appeared in this case, as did James Cornwell (also of the Panopticon fold), so I will not be offering an analysis of the case just now. With any luck, one of my colleagues will be cajoled into doing so before too long.

It is worth pointing out simply that this is the first binding decision on the meaning of the various limbs of s. 55A of the DPA 1998, which contains the preconditions for the issuing of a monetary penalty notice.

Robin Hopkins @hopkinsrobin

Google Spain and the CJEU judgment it would probably like to forget.

Posted on | by Akhlaq Choudhury

In the landmark judgment in Google Spain SL and Google Inc., v Agencia Espanola de Proteccion de Datos, Gonzales (13th May 2014), the CJEU found that Google is a data controller and is engaged in processing personal data within the meaning of Directive 95/46 whenever an internet search about an individual results in the presentation of information about that individual with links to third party websites.  The judgment contains several findings which fundamentally affect the approach to data protection in the context of internet searches, and which may have far-reaching implications for search engine operators as well as other websites which collate and present data about individuals.

The case was brought Mr Costeja Gonzales, who was unhappy that two newspaper reports of a 16-year old repossession order against him for the recovery of social security debts would come up whenever a Google search was performed against his name. He requested both the newspaper and Google Spain or Google Inc. to remove or conceal the link to the reports on the basis that the matter had long since been resolved and was now entirely irrelevant. The Spanish Data Protection Agency rejected his complaint against the newspaper on the basis that publication was legally justified. However, his complaint against Google was upheld. Google took the matter to court, which made a reference to the CJEU.

The first question for the CJEU was whether Google was a data controller for the purposes of Directive 95/46. Going against the opinion of the Advocate General (see earlier post), the Court held that the collation, retrieval, storage, organisation and disclosure of data undertaken by a search engine when a search is performed amounted to “processing” within the meaning of the Directive; and that as Google determined the purpose and means of that processing, it was indeed the controller. This is so regardless of the fact that such data is already published on the internet and is not altered by Google in any way.

 The Court went on to find that the activity of search engines makes it easy for any internet user to obtain a structured overview of the information available about an individual thereby enabling them to establish a detailed profile of that person involving a vast number of aspects of his private life.  This entails a significant interference with rights to privacy and to data protection, which could not be justified by the economic interests of the search engine operator.  In a further remark that will send shockwaves through many commercial operators providing search services, it was said that as a “general rule” the data subject’s rights in this regard will override “not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name” (at paras 81 and 97). Exceptions would exist, e.g. for those in public life where the “the interference with…fundamental rights is justified by the preponderant interest of the general public in having…access to the information in question”.

However, the Court did not stop there with a mere declaration about interference. Given the serious nature of the interference with privacy and data protection rights, the Court said that search engines like Google could be required by a data subject to remove links to websites containing information about that person, even without requiring simultaneous deletion from those websites.

Furthermore, the CJEU lent support to the “right to be forgotten” by holding that the operator of a search engine could be required to delete links to websites containing a person’s information. The reports about Mr Costejas Gonzales’s financial difficulties in 1998 were no longer relevant having regard to his right to private life and the time that had elapsed, and he had therefore established the right to require Google to remove links to the relevant reports from the list of search results against his name. In so doing, he did not even have to establish that the publication caused him any particular prejudice.

The decision clearly has huge implications, not just for search engine operators like Google, but also other operators providing web-based personal data search services. Expect further posts in coming days considering some of the issues arising from the judgment.

Akhlaq Choudhury

Interfering with the fundamental rights of practically the entire European population

Posted on | by Robin Hopkins

In the Digital Rights Ireland case, the Grand Chamber of the CJEU has this week declared invalid the 2006 Directive which provides for the mass retention – and disclosure to policing and security authorities – of individuals’ online traffic data. It found this regime to be a disproportionate interference with privacy rights. Depending on your perspective, this is a major step forward for digital privacy, or a major step backwards in countering terrorism and serious crime. It probably introduces even more uncertainty in terms of the wider project of data protection reform at the EU level. Here is my synopsis of this week’s Grand Chamber judgment.

Digital privacy vs national security: a brief history

There is an overlapping mesh of rights under European law which aims to protect citizens’ rights with respect to their personal data – an increasingly important strand of the broader right to privacy. The Data Protection Directive (95/46/EC) was passed in 1995, when the internet was in its infancy. It provides that personal data must be processed (obtained, held, used, disclosed) fairly and lawfully, securely, for legitimate purposes and so on.

Then, as the web began to mature into a fundamental aspect of everyday life, a supplementary Directive was passed in 2002 (2002/58/EC) on privacy and electronic communications. It is about privacy, confidentiality and the free movement of electronic personal data in particular.

In the first decade of the 21st century, however, security objectives became increasingly urgent. Following the London bomings of 2005 in particular, the monitoring of would-be criminals’ web activity was felt to be vital to effective counter-terrorism and law enforcement. The digital confidentiality agenda needed to make space for a measure of state surveillance.

This is how Directive 2006/24 came to be. In a nutshell, it provides for traffic and location data (rather than content-related information) about individuals’ online activity to be retained by communications providers and made available to policing and security bodies. This data was to be held for a minimum of six months and a maximum of 24 months.

That Directive – like all others – is however subject to the EU’s Charter of Fundamental Rights. Article 7 of that Charter enshrines the right to respect for one’s private and family life, home and communications. Article 8 is about the right to the protection and fair processing of one’s personal data.

Privacy and Digital Rights Ireland prevail

Digital Rights Ireland took the view that the 2006 Directive was not compatible with those fundamental rights. It asked the Irish Courts to refer this to the CJEU. Similar references were made during different litigation before the Austrian Courts.

The CJEU gave its answer this week. In Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others (C‑293/12) joined with Kärntner Landesregierung and Others (C‑594/12), the Grand Chamber held the 2006 Directive to be invalid on the grounds of its incompatibility with fundamental privacy rights.

The Grand Chamber accepted that, while privacy rights were interfered with, this was in pursuit of compelling social objectives (the combatting of terrorism and serious crime). The question was one of proportionality. Given that fundamental rights were being interfered with, the Courts would allow the European legislature little lee-way: anxious scrutiny would be applied.

Here, in no particular order, are some of the reasons why the 2006 Directive failed its anxious scrutiny test (quotations are all from the Grand Chamber’s judgment). Unsurprisingly, this reads rather like a privacy impact assessment which data controllers are habitually called upon to conduct.

The seriousness of the privacy impact

First, consider the nature of the data which, under Articles 3 and 5 the 2006 Directive, must be retained and made available. “Those data make it possible, in particular, to know the identity of the person with whom a subscriber or registered user has communicated and by what means, and to identify the time of the communication as well as the place from which that communication took place. They also make it possible to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.”

This makes for a serious incursion into privacy: “Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.”

Second, consider the volume of data gathered and the number of people affected. Given the ubiquity of internet communications, the 206 Directive “entails an interference with the fundamental rights of practically the entire European population”.

Admittedly, the 2006 regime does not undermine “the essence” of data protection rights (because it is confined to traffic data – the contents of communications are not retained), and is still subject to data security rules (see the seventh data protection principle under the UK’s DPA 1998).

Nonetheless, this is a serious interference with privacy rights. It has objective and subjective impact: “it is wide-ranging, and it must be considered to be particularly serious… the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.”

Such a law, said the Grand Chamber, can only be proportionate if it includes clear and precise laws governing the scope of the measures and providing minimum safeguards for individual rights. The 2006 Directive fell short of those tests.

Inadequate rules, boundaries and safeguards

The regime has no boundaries, in terms of affected individuals: it “applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime”.

It also makes no exception for “persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy”.

There are no sufficiently specific limits on the circumstances in which this can be accessed by security bodies, on the purposes to which that data can be put by those bodies, or the persons with whom those particular bodies may share the data.

There are no adequate procedural safeguards: no court or administrative authority is required to sign off the transfers.

There are also no objective criteria for justifying the retention period of 6-24 months.

The Grand Chamber’s conclusion

In summary, the Grand Chamber found that “in the first place, Article 7 of Directive 2006/24 does not lay down rules which are specific and adapted to (i) the vast quantity of data whose retention is required by that directive, (ii) the sensitive nature of that data and (iii) the risk of unlawful access to that data, rules which would serve, in particular, to govern the protection and security of the data in question in a clear and strict manner in order to ensure their full integrity and confidentiality. Furthermore, a specific obligation on Member States to establish such rules has also not been laid down…”

There was also an international transfer aspect to its concern: “in the second place, it should be added that that directive does not require the data in question to be retained within the European Union…”

This last point is of course highly relevant to another of the stand-offs between digital privacy and national security which looms in UK litigation, namely the post-Snowden litigation against security bodies.

Robin Hopkins @hopkinsrobin