Tuesday 17 June 2014

NGOs to test the Home Office’s stance on communications data retention

Lawyers from the Open Rights Group, Liberty and Privacy International have met to discuss what sort of intervention might be appropriate, given the European Court of Justice’s views on the EU’s Data Retention Directive. What steps should be taken by the Home Office, in light of the way the UK has implemented what is now a defunct Directive?

More specifically, what alternative legislation would be deemed acceptable by Parliament if it were felt that the UK’s data retention legislation, which predates the Data Retention Directive, was currently inadequate? What communications records should now be retained, for how long, by whom, and for use in what types of investigations?

According to the ORG, there is no legal basis for continuing data retention in the UK. But, given the very muted adverse public reaction to the publication of Vodafone’s recent transparency report, outlining, where it is permitted, the volumes of law enforcement requests it receives in its various operating countries, it will be interesting to monitor how the public displays their concern at current retention and investigation standards.

I’m also wondering how, given the state’s presumed capabilities in this area, the NGO’s lawyers will manage to control the flow of sensitive communications between themselves, to prevent any unwanted snooping before they are ready to reveal their hand.

If I were advising the NGO’s legal teams, I wouldn’t bother with anything too fancy when it comes to encrypting the communications. I’m confident that the Home Office will play the game, and that it won’t authorise any attempts to access any confidential material that may be shared between these parties. After all, they’re only testing the current law. It’s not as though anyone is planning an armed uprising, or are in any way threatening the British national interest.

Can there be any better way for the Home Office illustrate its adherence to British values than to wait until these NGOs have shown their hand, rather than seeking to learn in advance what they’re up to?  


Monday 16 June 2014

David Smith gets his MBE

Congratulations, David Smith, for your magnificent achievement in being awarded an MBE in this year's  Birthday Honours List. I'm sure its to mark a lifetime of devoted and public service, and it must be most richly deserved.

For those that don't know, David is a Board Member of Robust Details Ltd, and President of the Consortium of European Building Control. His citation commemorates his services to building control and voluntary service in Suffolk.

I wondered why the powers that be were minded to offer a gong to "that" David Smith, rather than to the Deputy Commissioner with responsibility for the data protection supervisory functions of the ICO.

Could it be the case that the Consortium of European Building Control is a more respected body than the ICO? According to its website, the CEBC focuses on the Directives and Regulations issued by the European Union concerning all topics related to buildings, building products, building standards, professions or regulations about professions. Impressive stuff. Or perhaps it is the case that his voluntary work has made a real and lasting contribution to the local community. 

The ICO’s David Smith probably hasn’t had sufficient time to devote much voluntary service to citizens in the North West, given the time he spends travelling to meetings all over the UK on domestic data protection matters, the current demands of representing the UK on the Article 29 Working Party, and the extremely demanding task of chairing the data protection and supervisory body for Europol between October 2006 and October 2009.  

Hopefully the ICO’s David Smith won’t have to wait too much longer before he gets that all important letter from one of the Committees that meet to consider suitable applicants.

After all, it’s been ages since anyone from the ICO has been given a gong – and it is only former ICO staff that ever get public honours in recognition for their services to data protection. DP practitioners have never been deemed worthy of any official recognition.


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Thursday 12 June 2014

The case for publishing (redacted) surveillance warrants

The Home Secretary was asked yesterday if she would consider publishing anonymised versions of the applications that are prepared for surveillance warrants, to reassure the public that appropriate checks and balances were in place.

Apparently, there was a sharp intake of breath from the intelligence experts in the audience, and Mrs May preferred to leave a question mark over that particular issue.

If I were Home Secretary, I would welcome such a suggestion, and I would actually apologise for not having implemented such an excellent suggestion sooner.

In a previous working life, I was the responsible officer for T-Mobile's law enforcement team. You would expect a company the size of T-Mobile to receive lawful interception warrants, so I don’t think I am guilty of breaching the Official Secrets Act by admitting that, yes, in the past, I have seen some.

The usual practice at T-Mobile would be for the company to receive advance notice of an application for an interception warrant and then, before the interception actually commenced, it would receive verbal confirmation that the relevant minister had signed the warrant. Shortly afterwards, the warrant would be delivered to the company.

Once the interception had ceased, the warrant would be returned to the sender.

Very occasionally, there might be a problem with the paperwork that the company received. The company would expect to receive just the interception warrant. It would not expect to receive any of the supporting documentation, such as the application form containing the extremely sensitive material that was presented to the minister to support the application for the warrant. This paperwork should have been separated from the warrant before it was sent. So should any extra paperwork arrive, it was immediately returned. If my curiosity got the better of me, I might quickly read some of it.

Of course I’ve forgotten the identities of the targets – I often ignored that part of the application form anyway, as I was really worried that it would be hard for me to make myself forget details I didn't need to know in the first place. The less I knew about a particular target, the less I needed to forget. Other members of my team needed to read that part of the document – and act on it. But not me.

What did impress me, and what has stayed in my mind, during these intervening years, is an appreciation of the care and attention to detail that the author of each lawful interception application form was required to present to the minister. The paperwork (which might relate, say, to a request to intercept a suspected drug dealer's communications) could run to over 20 pages in length, summarising the latest progress of the investigation. Substantial chunks of prose would outline the potential risks, in terms of necessity and proportionality, of intercepting people who were unconnected with the target. Other, equally substantial, chunks of prose would outline why it was unlikely that operationally vital intelligence could not be obtained by using less intrusive techniques.

I’m sure that most privacy wonks would be mightily impressed if they were ever allowed to read what I was able to read.

There is a good news story that the Home Office must not let the “intelligence experts” veto. It would be a relatively easy exercise to anonymise some of the application forms to the extent that (probably) only teh relevant drug dealer might recognise that the application related to them. Samples of suitably redacted application forms could be published by the Interception of Communications Commissioner, once he was satisfied that publication would not prejudice the course of justice.

While a few spooks might mutter how disgraceful it is to give any part of the surveillance game away, I would reply that even the spooks have an obligation to assure the public – their paymasters – that high standards of probity are always maintained. 

If the Home Secretary were bolder, perhaps she might allow Chanel 4 to commission a new TV series on surveillance. After all, if consenting parents are happy to feature on “One Born Every Minute”, leaving nothing to the imagination during the birth of their children, perhaps new stars might emerge with the transmission of a series provisionally entitled “Can You Hear Me, Mother?”  – where the cameras would follow the working lives of a team of intrepid lawful interception analysts during their shift.

I'm sure that some TV cop would be happy to present the series for an extremely modest fee.


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Wednesday 11 June 2014

Pointless data protection practices

The Crouch End Chapter of the Institute for Data Protection held its summer party yesterday.  Tall tales of data protection heroism were recanted, then as the alcohol continued to flow, the conversation turned into a good-natured argument about the most pointless bit of data protection practice.

Could anything beat the futility of registering all of your data protection processing purposes with the ICO, and creating lists of classes of recipients for each purposes?

After about half an hour, there was general agreement on what was the most pointless bit of data protection practice. Someone mentioned that when contracts were negotiated at their workplace, the data protection team ensured that, stuffed inside one of the schedules, were the EU model clauses that relate to data controller – controller or data controller – processor relationships.

Just in case anyone has forgotten why these clauses are considered important, they are used, in Eurospeak,  “to ensure that the contracts provide adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals as regards the exercise of their corresponding rights.

Yeah, right.

Let’s put it another way.

The Controller / Controller clauses were originally introduced in 2001, and were revised in 2004. The Controller / Processor clauses were originally introduced in 2002, and were revised in 2010. They involve the creation of a standard template, which then (usually) needs to be formally agreed by way of an exchange of paper documents, as lots of lawyers don’t trust the authenticity of the electronic versions.


I’m not sure who reads them before they are agreed, or who audits them to offer an assurance about compliance after they have been agreed. I’m actually not sure if there has ever been any litigation that tested or was based on any of these clauses.

If anyone knows of any occasion where anyone has ever taken action to enforce compliance with any of these clauses, please let me know and I’ll ensure that their fame spreads across the globe.

It was the unanimous view of everyone still standing at the end of the summer party that the clauses were, in practice, worthless. They might well have given someone the impression that the relevant protections were in place, but these protections are virtual, rather than real.

There was a grudging acceptance, though, that the standard contractual clauses were of value in that they gave data protection teams something to do. If clauses were required, then they needed to be inserted into contracts, and formally agreed. All good work for the working man to do. Anecdotal evidence suggested that some global companies actually employed teams of people whose sole purpose was to ensure that the right words were in place for the relevant agreements between all subsidiary companies, and others. Is this a complete waste of money, or simply a cost of doing business in the EU?

Given the lack of any evidence of any effort to do anything once the contracts have actually been signed, it appears that the administrative burden of inserting the relevant clauses in the relevant contracts is simply a cost of doing business in the EU.