The Investigatory Powers Act 2016 (the “Act“) received Royal Assent on 29 November 2016. Dubbed the “Snoopers’ Charter” it has been heavily criticised by various commentators, including the advocacy group Liberty.
The main source of criticism has been around the requirements for bulk retention of data (such as communications data and internet connection records) and the increased ability of public authorities to access such data. Communications data is the ‘who’, ‘where’, ‘when’, ‘how’ and ‘with whom’ of a communication, but not the content, whilst internet connection records are records of the services that have been accessed by any device.
The legality of parts of the legislation were called into question by the subsequent European Court of Justice decision at the end of last year (the DRIPA case), which held that the general and indiscriminate retention of traffic and location data under the Data Retention and Investigatory Powers Act (“DRIPA“) was incompatible with the e-Privacy Directive taking into account the Charter of Fundamental Rights of the European Union – unless restricted to the purpose of preventing and detecting serious crime.
More recently the High Court has granted Liberty leave to challenge those aspects of the legislation which provide for the retention of communications data and internet connection records. In addition to the implications for an individual’s right to privacy, Liberty has argued that the Act places onerous duties on telecoms companies and internet service providers who have to undertake the capture and retention of the data. Now that permission has been granted for judicial review, Liberty’s application for a costs capping order will also be considered. If granted, the case will be listed for a full hearing.
For further information regarding Liberty’s challenge click here.