The Data Retention and Investigators Powers Bill (Dripa), which was declared unlawful by High Court judges after a challenge from two MPs earlier this year, is set to be looked at by the highest court in Europe after a government appeal was pushed to the continent.
Three judges at the Court of Appeal have dodged a decision on two questions around whether bulk data retention was in fact lawful under the Dripa legislation. The questions, which relate to the implementation of whether the bill was compatible with existing EU rulings, may have implications on the current draft Investigatory Powers Bill (IP Bill).
The Dripa law, which remains in force until March 2016, forced communications companies, including internet and phone providers, to store user communication data for a year. In July the High Court said Dripa did not "lay down clear and precise rules providing for access to and use of communications data".
The initial legal challenge to the Dripa legislation, which was pushed through parliament in a matter of days, was bought by Conservative MP David Davis and Labour's Tom Watson.
Writing for WIRED following the initial decision against the law Davis said there was no need for the emergency legislation. "The government was simply trying to avoid proper parliamentary scrutiny," he explained. "It was an insult to Parliament and our democracy, and a masterclass in poor legislating."
A provisional but not binding decision from the Court of Appeal judges argued that existing case law didn't lay down "mandatory requirements" for the national surveillance laws of European countries. The High Court had previously said the opposite.
The existing judgement, known as Digital Rights Ireland, another decision from the European Court, had previously said data retention had a "serious interference" on the right to privacy.
While the government's IP Bill does not include all of the same provisions as Dripa, the passing of the surveillance case to Europe will be welcomed by the government. This is due to the IP bill not containing all the protections to communications data that are set out in the Ireland case.
David Anderson QC, the independent reviewer of terrorism legislation, has written the latest decision "will be of considerable comfort to the government".
This article was originally published by WIRED UK
