New legislation that would enable a UK intelligence agency to monitor data from internet communications in real time without a warrant could be challenged at EU level unless other privacy safeguards limit the scope of that monitoring, an expert has said.
The Government confirmed its intention to introduce new laws on the use of "communications data" at the weekend.
The laws would give UK intelligence body GCHQ real time access to information held by internet service providers (ISPs) and other internet firms, such as information on who individuals are contacting, how frequently and for how long, according to media reports.
GCHQ would not require a warrant to access that data but would require one to access the content of those communications. The plans have been widely criticised by civil liberties groups.
Data protection law specialist Kathryn Wynn of Pinsent Masons, the law firm behind Out-Law.com, said that the plans appear to be an attempt to strengthen access rights already available to the police and intelligence under the Regulation of Investigatory Powers Act (RIPA) and the Data Retention Regulations.
However, she said the European Commission could challenge any new laws that unreasonably invade on internet users' privacy. "On the privacy side little has changed as ISPs and carriers are already required to give GCHQ access to information on request," Wynn said on Tuesday. "What is new is that this legislation means it could be demanded in real time, rather than simply asking for historic data."
"However, the UK Government will need to take account of privacy when drafting any new law. It has already had to change UK laws on the interception of communications after the Commission challenged its compatibility with EU privacy laws.
With a general strengthening of individuals' rights already planned under reforms to EU data protection laws, the Commission is likely to be similarly willing to clamp down on any new privacy-invading laws the UK drafts," Wynn said.
A spokesperson for the Commission commented last night:
The Government’s email and web monitoring plans would potentially be incompatible with the right to privacy of many ordinary people in the UK.
The Commission's own research last year into information privacy concluded that there was a lack of proper regulatory oversight and too much conflicting legislation, all of which fails to provide adequate protection for citizens and their private information.
We found that the way the government and its agencies collect, use and store personal data is not respecting people's right to privacy. However, because of the complexity of the current laws, obligations are unclear and authorities may be unaware they are breaking the law.
These issues need properly addressing rather than introducing new proposals which further reduce people's rights to privacy.
Last year the Government made changes to RIPA after the Commission had referred the UK to the European Court of Justice (ECJ) over the claimed failings of UK law. The Commission had said that the privacy of internet users in the country was not being adequately protected.
Earlier this year the Commission reported that its concerns had been addressed after RIPA was amended to state that it is now generally only legal to intrude on private communications if you have a warrant or both the sender and recipient of information have given consent, even if it is done unintentionally.
Under the old RIPA regime there only needed to be 'reasonable grounds' for believing that consent had been given to allow communications to be intercepted without a warrant.
The balance of privacy with communications monitoring has been the subject of two recent rulings by the ECJ in relation to online copyright infringement. The Court ruled that national courts cannot order ISPs or social networks to introduce broad monitoring and filtering mechanisms to identify and prevent illegal file-sharing by their customers.
In both cases the ECJ assessed EU laws on copyright and the enforcement of intellectual property rights as well as laws on the liability of service providers, data protection and privacy in communications.
It also weighed the fundamental rights to the protection of intellectual property against the rights to privacy, free speech, the freedom to conduct business, and protection of personal data. It said that, on balance, it would be unfair if courts could force social networks to monitor for illegal file-sharing.
"Any new legislation requiring ISPs and other internet companies to provide GCHQ with real time access to communication data must be carefully drafted to avoid non-compliance with EU law," Wynn said.
"Suitable parameters will have to be put in place to provide a balance between the UK being effectively tooled in the fight against serious crime and the safeguarding of privacy."
"RIPA already provides scope for the use of communications data in investigating serious crime. Access to that information is already subject to certain parameters so it remains to be seen whether new laws would in fact much change the powers that are currently in place," Wynn said.
Law enforcement bodies already have the power to access historic communications data held by telecoms firms under the EU's Data Retention Directive.
The Directive was established in 2006 to make it a requirement for telecoms companies to retain personal data for a period determined by national governments of between six months and two years. The Commission decided to regulate following terrorist attacks in Madrid in 2004 and London in 2005.