Executive Summary: The United Kingdom
1. This Memorandum was commissioned to provide an indication of the legality of measures being undertaken throughout the EU to require the retention of communications data. The advice relates to the retention of data in a mandatory regime. The document is intended as a framework for the development of analyses more specific to national legal environments.
2. The indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behavior to avoid unwanted intrusions. Moreover, the data retention requirement would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society.
3. These and related protections are clearly affirmed in such cases as Klass v. Germany, Amann v. Switzerland, Rotaru v. Romania, Malone v. United Kingdom, Kruslin v. France, Kopp v. Switzerland and Foxley v. United Kingdom.
4. A number of countries in the EU have taken steps to create a legislated requirement on communications providers to store their customers’ communications data for a minimum period. This analysis establishes that the fact of this blanket retention contravenes the European Convention on Human Rights.
5. Two Statutory Instruments currently before the UK Parliament would (a) establish a voluntary regime for retention and (b) extend a sunset clause within the Anti-terrorism, Crime and Security Act that would give the government authority to replace this voluntary scheme with a mandatory regime. It appears probable that such a scheme will be subject to similar, if not identical, constraints under the Convention.
6. This analysis establishes that it is the fact of blanket retention that is key to assessing the legality of the UK SI’s. The impact of either a universal voluntary scheme or a mandatory regime on such guarantees as Accessibility and Foreseeability will in all likelihood bring the UK proposals into conflict with the Convention.
The text of the Memorandum begins below.