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A DRIP in time...

Previously on UK Government... the passage of the Digital Economy Act in the wash-up before Parliament disbanded for the election taught everyone that you can rush through terrible legislation if you pick the right moment....

...On April 8, the European Court of Justice ruled that the EU's Data Retention Directive was a disproportionate intrusion on fundamental human rights, simultaneously invalidating the national legislation that transposed it in all the member states. A few of those member states actually stopped - such as Austria. The UK government said...not much.

Until yesterday, when it suddenly announced emergency legislation in the form of the Data Retention and Investigatory Powers bill - DRIP for short. (Presumably some wag through it was cute to refer right there in the title to watching our privacy drip away.)

The stated purpose is to "restore" the powers the judgment removed - only, David Cameron said in making the official announcement , "in a more proportionate way". The "emergency" is presumably that no one wants to risk that ISPs and other communications service providers might start deleting the data they already hold or refuse to collect more of it. And Parliament's about to disband for summer vacation. So, the argument goes, we must amend the law in haste, and it's all right, we won't be repenting at leisure because there's a sunset clause so the thing will expire in 2016 and we'll have plenty of time to debate it properly then.

As opposed to any time in the last two months, when they could have had more than a few days when everyone is distracted to scrutinize what by now is a very complex piece of legislation with many interlocking parts. The MP David Davis (Conservative, Haltemprice and Howden) said it was "a predictable emergency"; fellow MP Tom Watson (Labour, West Bromwich East) called it "a stitch-up".

An honest approach to this situation might look like this:

- The ECJ decision has invalidated the data retention laws passed to implement the EU Data Retention Directive in the UK.

- Here is what they said was wrong with the directive.

- Here is new legislation that addresses precisely those issues, along with an analysis explaining why and how it fixes the legal problems.

- Here is time for the public to submit responses and comments, plus time for MPs to scrutinize the legislation and ensure it does what it says on the tin.

They didn't do any of that. So what we're left with is a load of questions. How does this emergency legislation address the legal problems raised by the ECJ? How does it relate to the rules laid out in the Regulation of Investigatory Powers Act and the Anti-Terrorism, Crime, and Security Act? And what extras are lurking behind the mad rush to legislation?

If the government has nothing to hide, it has nothing to fear from . One would think.

As David Allen Green points out (registration required), a legislation process that ought to take a year is being squashed into seven (working) days. Green then sets out to investigate the question of what extras the government is trying to get through under the "emergency" tagline (as he notes, the government was warned as long ago as 2006, when the directive was passed, that portions of it seemed incompatible with the EU charter's fundamental human rights). Green, who is a lawyer (which I am not) calls the bill's amendments to RIPA "significant": the UK government wants to extend its interception rules to non-UK based services; it extends the RIPA definition of "telecommunications service"; and argues that this should be new legislation in its own right and is nothing like the "clarification" the government is saying it is.

If you want more scathing, at Privacy Surgeon Simon Davies calls this the "Uganda Road" and argues that the point of the extra-territoriality powers is to legalize GCHQ spying on overseas targets. Instead of being a breakthrough, he writes, "As far as the UK is concerned, [the ECJ] ruling merely provided free advice on how to make a mass surveillance infrastructure legally sustainable."

Remember, it's only a couple of weeks since Home Secretary Theresa May told us there is no surveillance infrastructure. This is the logical result: let's create one, in a hurry, before anyone looks too close.

We especially can't rely on the 2016 sunset clause to make things all right. Because, as Michael Hanlon says with respect to airport security in The Spectator, it's never in a politician's interest to weaken security rules. The 2016 sunset clause is, to mangle Bruce Schneier''s favorite phrase, politics theater. Come 2016, what we'll be hearing is that we don't dare let this legislation lapse because we would be taking away powers the security services and law enforcement really need. By then, as Time magazine has noted, our homes will be keeping tabs on us, and think how helpful *that* data could be, intelligencewise? It would be much better to force a halt now - or, failing that, to keep the legislation to its emergency knitting and jettison anything that doesn't specifically address the situation created by the judgment.

The Open Rights Group has suggestions for what to write to your MP.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.


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