Provisions in the Regulation of Investigatory Powers Act of 2000, known as RIPA, gained their controversial edge as a result of the Act's interaction with the Anti-Terrorism, Crime & Security Act (ATCSA), which was enacted in the aftermath of the September 11th tragedy.
This latter Act required the retention of communications data on the grounds that these were needed for the purpose of fighting terrorism. However, once retained, the RIPA provisions permitted access to many other agencies for purposes unconnected with terrorism.
Communications data are those data retained by telecommunications companies (including ISPs and interactive television service providers) and is limited to data which describe the caller and the means of communication (e.g. subscriber details, billing data, e-mail logs, personal details of customers and records showing the location where mobile phone calls were made) but not the content of the communications.
Communications data are viewed as valuable as they permit the creation of a comprehensive dossier on the contacts, friendships, interests, transactions, and movements.
Since everyone in the UK uses electronic communications, the provisions of RIPA and ATCSA impacts on most adults in the UK.
Additionally, a single request for access to communications data can involve many individuals (e.g. communications data of those who have called Organisation X).
Access to communications data was the subject of a draft Order laid before Parliament last year, which described a wide number of enforcement agencies. This draft Order was quickly dubbed a 'Snoopers' Charter' and subsequently withdrawn. It is the replacement of this Order which was laid before Parliament last Thursday.
This Order permits access to communications data by the "usual suspects" – namely the police, the Inland Revenue, Customs and Excise, MI5, MI6 and GCHQ – the Government Communications Headquarters. However, like the 'Snoopers' Charter', other agencies will have automatic rights to access communications data. For example:
According to the Home Office the new measures will balance privacy and the protection of the public, and represent a radical revision of last year's Order.
In particular, says the Home Office, the new Order will restrict the type of information public authorities are granted access to and restrict the reasons why public bodies can be granted access to comminications data.
It will also only allow senior designated people within public bodies to authorise access and ensure regular checks on public authorities by the Interception of Communications Commissioner to ensure access is not abused.
Home Office Minister Caroline Flint said, in announcing the new Order:
"We have dramatically cut down the number of organisations who will be allowed access to all communications data and significantly tightened up the procedures for access to data by all organisations.
"We need to ensure that we strike the right balance between the privacy of the citizen and the need to investigate crime and protect the public. I believe that the new Order achieves that balance."
Shami Chakrabati, Director of human rights organisation Liberty, disagreed:
"The government has failed to learn from its mistakes. After the original "snoopers' charter" was published last year, the government was forced to retreat after enormous public outcry. We hope the same happens again.
"Under a snowstorm of accompanying paper we have unearthed buried proposals to allow new public bodies the right to use undercover agents for investigations. Such groups as The Charity Commission, the Gaming Board and the Postal Services Commission will now be able to use agents and informants to carry out investigations. Why? This underlines the uncomfortable fact that the British public are the most spied upon people in the Western world."
This view is echoed by Ian Brown, Director of Foundation for Information Policy Research (FIPR) who commented:
"The Home Office have failed to understand that it is unacceptable for government officials to authorise themselves to snoop on who we have been calling or which web sites we have been looking at. Even where crimes are serious enough for this to be justified, it is vital to have a proper oversight routine and criminal penalties for those who misuse their powers."
He added that the Home Office has been deaf to the issue. "Underneath the paint job is the same ugly scheme."