Wednesday 6 February 2013

Communications Data Retention – The ISC’s report

The Intelligence and Security Committee has published its eagerly awaited (28 page) report on how the proposals in the Government’s draft Communications Data Bill might affect the use of communications data by the intelligence and security agencies.

It complements the more wide-ranging (101 page) report that was published last year by a Joint Parliamentary Committee that I worked with.

It won’t come as a surprise to anyone to learn that the conclusions are very similar.  Both reports considered that the Bill should be much more specific about the records that providers should (generally) be required to retain. 

The ISC, naturally, is keen that people who may be of interest to the agencies are not given an opportunity to learn precisely where the gaps in capability are. If targets knew where the gaps were, they might be exploited to evade detection. Accordingly, the ISC considers that notices to particular providers, requiring them to retain particular date types, should remain secret. 

That may be highly desirable as far as the agencies are concerned, but in many cases the records, if they exist, will eventually be produced as evidence in legal proceedings that relate to criminals who are of no interest to these agencies. How can a capability by a provider to retain particular records remain a secret for the agencies, but be public knowledge for other parts of the law enforcement community, the courts – and also for customers when the exercise their subject access rights under data protection legislation?  

It is not at all easy, in an internet age, to tinker with the transparency agenda. Perhaps there is a trade off between short term dips in operational capability and greater public pressure on a provider (or providers) to start to keep records that, for commercial, technical or legal reasons, are not currently kept.  

I would expect the Government to adopt an approach that allows a greater, rather than a lesser, degree of transparency. All citizens expect the State provide a certain degree of public security, and for that the State needs the tools that are necessary to enable it to carry out this role. But citizens also want to be confident that the State is only doing what is necessary and what is proportionate. 

Now that this report has been published, it shouldn’t be long before we hear about the Government’s revised plans to ensure that those who have the capability to inspect our communications remain fully accountable.

Access To Communications Data By The Intelligence And Security Agencies, Cm. 8514