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Seven week consultation on proposed changes to the UK’s communications data retention and acquisition regime opens.

The government yesterday announced that it is consulting on new safeguards for the use of communications data.

A consultation, which will run for 7 weeks, is seeking views on amendments to the UK’s communications data and acquisition regime in response to a judgment handed down by the Court of Justice of the European Union in December 2016.

The proposed changes will introduce additional safeguards to ensure communications data can continue to be used to keep people safe from crime and terrorism while complying with the judgment.

Launching the consultation, Security Minister, Ben Wallace said:

Communications data is used in the vast majority of serious and organised crime prosecutions and has been used in every major Security Service counter-terrorism investigation over the last decade. Its importance cannot be overstated.

For example, it is often the only way to identify paedophiles involved in online child abuse and can be used to identify where and when these horrendous crimes have taken place.

As this is an issue of public importance, we consider it important to consult on our proposed changes to inform our legislative response and subsequent Parliamentary debate. All responses will be welcomed and carefully considered.

The new provisions include:

• the introduction of independent authorisation of communications data requests by a new body, known as the Office for Communications Data Authorisations, under the Investigatory Powers Commissioner Lord Justice Fulford
• restricting the use of communications data to investigations into serious crime
• additional safeguards which must be taken into account before a Data Retention Notice can be given to a telecommunications or postal operator
• clarification of the circumstances in which notification of those whose communications data has been accessed can occur
• mandatory guidance on the protection of retained data in line with European data protection standards

The communications data code of practice, which sets out how the safeguards governing the retention of communications data by telecommunications operators and its acquisition by public authorities will operate, is also being published yesterday for consultation.

The government is clear that the December 2016 judgment does not apply to the retention or acquisition of data for national security purposes as national security is outside of the scope of EU law. Nevertheless, a number of the proposed changes will apply to certain national security applications for communications data to create a simpler, more practical regime.

Notes to editors:

Communications data is the ‘who’, ‘where’, ‘when’, ‘how’ and ‘with whom’ of a communication, but not what was written or said, and includes information such as the subscriber to a telephone service. It is an essential tool for the full range of law enforcement activity and national security investigations, for example to investigate crime, keep children safe, support or disprove alibis, and tie a suspect to a particular crime scene, amongst other things. It is used in 95 percent of serious and organised crime prosecution cases handled by the Crown Prosecution Service Organised Crime Division, and has been used in every major Security Service counter-terrorism investigation over the last decade.

The Investigatory Powers Act brings together and updates existing powers while radically overhauling how they are authorised and overseen. There is more information on GOV.UK.

The consultation is open for responses now and will close on 18 January 2018. The government proposes amending the IPA by secondary legislation made under section 2(2) of the European Communities Act 1972.

We have also published relevant case studies.