David Davis writes in the Mail on Sunday about the Data Retention and Investigatory Powers Act


As published in The Mail on Sunday:
This Data Law has Nothing to do with Catching Terrorists – and Everything to do with a Lust for Power

THE last time the main parties got together in a closed room, did a deal and told the country there was a need to act urgently, we were on the edge of abandoning 300 years of press freedom.

This time our privacy is under threat. In the name of security, the Government is fast-tracking legislation through Parliament that will allow it to collect huge quantities of our personal data. We would do well to remember the advice of Ben Franklin: Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.’

The Government has engineered a theatrical emergency’ – in this case terrorism and hidden paedophile rings – to ram the Data Retention and Investigatory Powers Bill through Parliament without proper debate. It is an insult to the supremacy of Parliament, to democracy and to the trust of the public.

It was April 8 when the European Court of Justice struck down the Data Retention Directive for being incompatible with human rights. The Home Office has had time to put an alternative in place, so the excuses for why the legislation is being fast-tracked are laughable.

It is a sad state of affairs when European courts are a greater defender of our ancient rights than Parliament and Her Majesty’s Government. Even the German Supreme Court overturned its far less invasive data collection laws for violating the privacy rights of German citizens.

How far we have slipped, this birthplace of democracy, that our own judicial safeguards stand by while our hard-fought rights are stripped from us by a Government that has lost its sense of proportion in its fear of making a mistake.

Don’t be persuaded by Deputy Prime Minister Nick Clegg’s reassurances that this is about maintaining what we already do rather than extending it’. This is the man who insisted on including in the Coalition agreement the promise that we will end the storage of internet and email records without good reason’. So what happened to that promise?

Frankly, the Government is uncritically swallowing what it is fed by our security agencies. It was asked for these powers to combat criminals, terrorists and paedophiles’, and it is handing these powers over. The arguments marshalled are near- identical to those rejected by the committee of the Lords and Commons that reviewed the Government’s proposed snoopers’ charter’, and which led to that being thrown out.

David Cameron proclaimed we have no cause for concern as the legislation only impacted on communications data’ – or metadata’ – not the content of our phone calls. But it is clear that metadata has become even more informative than the content. After all, the content of a call only tells you what was said; metadata tells you where you have been, who you have talked to and when. And because it is digital, it can be manipulated to tell a complete story of your life – as a director of America’s National Security Agency once said: We kill with metadata.’

This is why the Government’s claim that the content of communications is rarely examined is so meaningless. This data, which it wants every service provider to store for every one of us, will give access to every aspect of our lives.

It should be remembered that the Data Retention Directive was enacted by the EU in 2006, when the quantity of electronic communications and the capabilities of the intelligence agencies were poorer. If we were to create this law now it would take a very different form. We need to reconsider whether the Government needs to collect this data from us all. We should not leave the signing of warrants to the Secretary of State; a judge should approve each application after a full hearing.

The Government has sprinkled some concessions throughout its announcement to sweeten the pill: an acknowledgement that the Regulation of Investigatory Powers Act is out of date; it will publish annual transparency reports; and a Privacy and Civil Liberties Oversight Board will try to balance our security requirements with our privacy rights. But these concessions are vague, and will inevitably be used to extend the powers beyond their current remit.

The Privacy and Civil Liberties Oversight Board will either be toothless or, like the current Intelligence and Security Committee, a Government rubber-stamp. And given the Home Office’s creativity when it comes to statistics, it is unlikely any information included in the proposed transparency report will result in greater transparency.

Even the statistics already released are cause for concern. The 2013 report of the Interception of Communications Commissioner revealed that 514,608 requests were made for data. By comparison, the most requests issued by the FBI in a year is 56,507. How can it be our intelligence agencies made nine times the number of requests for communications data than their US counterparts?

YET with all this information, the Government scrambled around to find a handful of examples where communication intercepts resulted in the prevention of criminal behaviour – but even these don’t face any serious scrutiny. With none of the raw data, we do not know if they are inflated claims. After the dodgy dossier’ on weapons of mass destruction, the deceit on rendition and torture, and the debacle over the snooper’s charter, it is hard to be confident.

Our Government has claimed that intercepted communications data was the critical evidence in 95 per cent of all serious crime cases. This would seem to go against the experience of the Metropolitan Police, which in evidence to a joint committee stated that communications data is used sparingly, because it is costly and resource intensive, and because of the need to… consider the impact of collateral intrusion on innocent people’. The fact it is used in criminal cases gives no indication of its importance in obtaining a conviction.

There is no doubt that communications data is very useful in pursuit of some crimes, but targeted use of metadata is not the same as mass collection of vast amounts of data from innocent multitudes.

What’s more, the Government’s pursuit of emergency legislation to get data about your emails comes three years after the American National Security Agency abandoned its own email metadata programme for being too expensive and ineffective – and no-one can suggest they face less of a threat than us.

The Government is being slippery over why this must be rushed through. We have been told that the crimes this legislation is aimed at require data to be held for longer periods – up to 12 months – than the time sufficient for lesser crimes. But telecoms companies are currently required by Ofcom to retain billing data for up to 15 months, separate from the Data Retention Directive.

Every Government’s record on hasty legislation is poor, particularly in relation to anti-terrorism. Given insufficient time for scrutiny there are problems with poor drafting and unforeseen consequences. But while Parliament can act in haste and repent at leisure, it is the public that suffers. Demands to act immediately’ must be ignored.

Theresa May claimed that it is not possible to debate the correct balance between security and privacy without understanding the threats that we face as a country’. In this year of First World War commemorations, after a century in which millions died in defence of our freedoms, we should consider the true threats facing the country, and the real cost of security.

What this Government is chasing is not public security, it is protection from blame if anything goes wrong. Those are not the same thing.

One person’s loss of freedom is everybody’s loss of freedom, one person’s loss of privacy is everybody’s loss of privacy. We must stand up for our rights and not succumb to the politics of fear. Otherwise we give those who hate our civilisation an easy victory, without a shot being fired.