August 19, 2014

SCL Technology Law Futures Forum

This issue features six articles which arise from the very successful Technology Law Futures Forum which took place in late June. I am grateful to the speakers who have taken the time to turn their presentations, or aspects of their presentations, into articles for the magazine.

I am still hoping that our next issue will bring more from the Forum but it is not likely to fully reflect the flavour of the event itself. However, if you do want to get a little closer to the experience of attending, there are podcasts available on the SCL web site which reflect most of the presentations in full. They are packed with solid educational material but, if you are in ‘August mode’, the robots session on day 1 is probably the most fun. You might go one better and make solid plans to attend next year’s event – I really cannot imagine how they will top the 2014 Forum, but no doubt they will find a way.


On 17 April we published an article on the SCL web site from Dr Julia Hörnle on the judgment of the Court of Justice of the European Union (of 8 April) which effectively declared the Data Retention Directive to be invalid. She ended that piece, which was published in the June/July issue of this magazine, with ‘it will mean that the European institutions will have to go back to the drawing board and provide for greater harmonisation which is also privacy rights compliant’. As we all now know, the UK government did not wait for the ‘European institutions’ to sort themselves out but produced ’emergency legislation’ which sped through Parliament in four days just prior to the summer recess.

The legislation itself does go some way to meeting the criticisms of the data retention regime which were voiced by the CJEU. I am pretty firm in my view that it does not go far enough but the change of status from a largely SI-based system to a system founded upon an Act of Parliament does give the new regime some spurious extra standing. The spuriousness arises from the fact that the process that produced this Act of Parliament is a blot on our claim to be a democratic society.

Firstly, there was no ’emergency’. If the Home Office’s characterisation of the effect of the CJEU judgment was true (undermining the legal basis of the old system of data retention) then one must assume that, as upholders of the law, the police and intelligence services refrained from engaging in any metadata checks in the interim: one envisages squads of officers forced to drink endless cuppas pending the passage of new legislation. My sources suggest that was not the reality. If there was an emergency, waiting three months before addressing it is hardly the action of a responsible government.

The time was spent, it seems, in consultation. Who were the persons that the Explanatory Memorandum describes as ‘those affected by these provisions’? Apparently, that was ‘the communications industry, law enforcement and intelligence agencies’. So that’s fine – clearly this legislation does not affect you and me.

But my distaste for Home Office manipulation, which is no more than we have come to expect, is far outweighed by my contempt for the MPs who rolled over and accepted these actions. The vast majority no doubt pretended to believe in the ’emergency’, some had the temerity to speak out in favour of the Bill – only a handful objected. The Bill was presented as a return to the status quo in an emergency so a sunset clause was added, which had the effect of keeping this law in place for nearly 30 months. How can a review in 30 months be adequate (30 weeks would be a long time), especially when it is clear that Parliament has little business to deal with between now and the election? It is a failure of Parliamentary scrutiny on a grand scale, made worse by the late delivery of the promised human rights impact and PIA assessments (which Parliament seems to have taken on trust).

So much has been written about the passage of the Data Retention and Investigatory Powers Act 2014 that you are probably bored by all this. But I cannot let pass the suggestion, in both the press release in support of the Bill and now in the newly published Privacy Impact Assessment, that the investigation into the Soham murders was significantly advanced by the use of powers supported by this legislation. Ian Huntley was arrested within a fortnight of the murders, and might well have been identified as the obvious perpetrator much earlier but for sloppy police work. When the argument is about the retention of everyone’s data for 12 months, the mention of these murders in support of the Home Office argument is an insult to the victims of those crimes.