LibLink: Lord Ken MacDonald: How the DRIP Bill will help us convict criminals

A telephoneThe Data Retention and Investigatory Powers Bill cleared its Commons stages last night after a long debate which saw Julian Huppert speak at every stage and in great detail. He was pretty much doing the job of a Minister and very clearly and rationally put the case for the Bill, at all times stating his own personal commitment to civil liberties.

Lord Ken MacDonald, who has been pretty sound on things like secret courts, the statelessness provisions in the Immigration Bill and the cuts to Legal Aid, has written an article in the Guardian in which he argues that the Bill is no threat to privacy. He’s even quite bullish about it, calling it “one of the better products of coalition.”

He makes the case that if we accept the principle of using phone records as evidence, why not allow this reach to extend to internet messaging.

People involved in serious crime talk to each other, just like the rest of us do. They use telephones and the internet, and they send each other emails.
And if, bizarrely, prosecutors are still not permitted to rely on recordings of conspirators discussing their crimes, at least they have long been allowed to make use of the fact that the conversations took place.

Criminal trials often reflect this. It’s hard to think of a single piece of heavyweight criminal litigation in recent years that hasn’t included communications metadata: not the content, but the fact that calls were made, by and to whom, and when and from where.

This is not, he said, some sort of Snowdenesque Dystopia:

Tempora makes all of us objects of desire to the state, whoever we are. It renders all human discourse the subject of government inquiry without warrant or discrimination and in doing so it redraws the line between citizen and state in an ugly way.

Drip is concerned with something quite different: the ability of the state to target communications metadata under lawful warrant where real suspicion exists that crime is taking place. But in order to gather this evidence for juries, the data has to exist. In the face of a recent European court of justice ruling that present arrangements are unlawful, the bill requires communications service providers to retain their records for 12 months, as many of them have in the past and as they often do anyway for their own business purposes. If a warrant is obtained, then as part of a criminal investigation access can be obtained by the police – and it has been for years.

He asks why the internet should be excluded:

It is difficult to see why a cloak of immunity should settle over any part of the internet where it’s used to advance crime. Instead, we should govern more carefully the circumstances in which data left behind may be accessed and deployed by the state – and we should do so with legislation that understands the technology.

As it happens, Drip offers this more liberal response.

You can read the whole article here.

You don’t just agree with someone because they have been sound before, but it it something to take into account that both MacDonald and Huppert have sound records on civil liberties. I was seething about secret courts but not so on DRIP.


* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

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  • The fact is the lib dems failed to be liberal or democratic here. A deal forced through in a couple of days cooked up by the leaders of English parties. No Plaid Cymru, no SNP and no representation from Northern Island. Just Cameron, Clegg and Miliband trying to get round European court ruling,

  • “He makes the case that if we accept the principle of using phone records as evidence, why not allow this reach to extend to internet messaging”

    And that’s the whole crux of it right there, I don’t, and even if I did, this is mission creep. Phone records when they were first set up only recorded which calls were made from one number to another number. That was for billing purposes, and IMHO should ALWAYS require a warrant to access that information if you are not 1, the phone company or 2, the person who pays the bill.

    These days that has mission crept, with mobile phone technology, to tracking location via the cell tower a phone made a call from, or even more precisely by the GPS in the phone. I do NOT accept that this should be freely available to the rozzers and I never will – although of course it should be admissible as evidence IF it has been properly obtained (I’m a big fan of the fruit of the poisoned tree doctrine, and mourn that it has never applied in this country). I certainly do not accept that this mission creep should be further extended to cover who I have sent an email to and which IP address I have sent it from, especially not the blanket retention of that data for an entire year just in case the rozzers want to look at it.

    I will also FURTHER point out AGAIN that under the statutory instrument clauses the sec of state can easily expand the classes of data to be retained.

    So I’m afraid I fall down on the very first sentence, Caron, and haven’t read the rest of it. Sorry.

  • “Drip is concerned with something quite different: the ability of the state to target communications metadata under lawful warrant where real suspicion exists that crime is taking place.”

    Blimey. I hesitate to contradict a former DPP, but that bears very resemblance to what the law actually says, which is:

    (1)This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data. .

    (2)It is necessary on grounds falling within this subsection to obtain communications data if it is necessary— .
    (a)in the interests of national security; .
    (b)for the purpose of preventing or detecting crime or of preventing disorder; .
    (c)in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of nationalsecurity; .
    (d)in the interests of public safety; .
    (e)for the purpose of protecting public health; .
    (f)for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; .
    (g)for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or .
    (h)for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.


  • Tsar Nicholas 16th Jul '14 - 6:01pm

    This monitoring has gone on for some time and yet neither in Britain nor in the United States have there been any prosecutions of bankers or banks for serious financial crimes which have had serious consequences for hundreds of millions of people around the world – crimes such as LIBOR manipulation etc.

    Which to my mind demonstrates that the idea that this intrusive surveillance is all for the best and for useful for fighting crime is just phooey.

    Not only are the financial terrorists immune from the law, but we ordinary citizens are continually under suspicion.

    And this on the eve of the 800th anniversary of Magna Carta.

  • David Evans 16th Jul '14 - 6:53pm

    It may well help us (or is it more correctly them) catch criminals, but it will enable the state to keep the rest of us (except bankers) under ever closer surveillance?

  • James Baker 16th Jul '14 - 7:05pm

    I agree communications data can be useful in criminal cases, but it needs certain checks and balances in place as set out in the 10 principles of the ECJ ruling. What I have an issue with is blanket retention and that is what the European Court ruled is unlawful.

    They said “restrict retention to data that is related to a threat to public security and in particular restrict retention to a particular time period, geographical area and / or suspects or persons whose data would contribute to the prevention, detection or prosecution of serious offences ” (para 58).

    Also the United Nations commissioner for Human Rights said mandatory retention is neither necessary or proportionate. –

    I think when you have both the European Court of Justice and the UN Commissioner of Human Rights making this point Liberal Democrats ought to take stock and pause.

    What DRIP does is stick two fingers up to both the court, and the UN commissioner for Human Rights, and legislate into primary legislation the ability to recreate that blanket retention through statutory instruments.

    On this specific article the main bit I take issue with is the misleading implication that you need a warrant to access this communications data :

    “Drip is concerned with something quite different: the ability of the state to target communications metadata under lawful warrant where real suspicion exists that crime is taking place.”

    Whilst a warrant from the Home Secretary is needed to intercept and read the content of communication, requests to obtain communications metadata by the dunderheads of organisations with RIPA powers (not just law enforcement) can be self-authorsied:

    Self-authorised: Authorised by ‘designated person’ in that organisation (s 22) and the ranks or office of who is able to authorise directed surveillance is as prescribed (s 25(2)).

    So it might be reassuring for some people that those you have previously trusted think this bit of legislation is ok, but when they are making these types of factual mistakes to help justify their reasoning are you still right to place such trust in them?

  • Richard Dean 16th Jul '14 - 7:18pm

    If that is really what the ECJ and UN say then they are wrong. More likely, however, is that the interpretation offered of what they say is wrong. Retaining data infringes nobody’s rights. Accessing data can do.

    As mentioned in the Commons debate last night, if a crime is committed then it can be helpful if the police can look through the recent communications data relating to suspects. To be able to do that, the data has to be available, but the police will not be able to identify specific suspects and data to retain until after the crime has been committed. Therefore, without either crime or suspects, there needs to be a general data retention. Once the crime has been committed, the police will then have the ability to specify which bits to seek authorization to access.

    This scenario assumes that no-one is a suspect until a crime has been committed, and then only reasonable suspects are targeted. The alternative is for everyone to be regarded as a suspect, before crimes are committed even. That is not the intention of this bill, but it does seem to be the likely unintended consequence of what the detractors of this bill are saying!

  • Tony Greaves 16th Jul '14 - 8:56pm

    The questions that Ken is not answering are:

    Why is this Bill suddenly needed as an emergency 3 months after the ruling of the European Court?

    If it is needed and there is a gap in what people should be able to do, why can’t it just be until the end of the year with a new Bill getting full and proper parliamentary scrutiny in the autumn?

    I can look back over a lifetime of Liberals arguing against emergency legislation being rushed through by an agreement across the party leaders – wrong in principle and it invariably it turns out to be bad legislation. It seems that yet again we have forgotten what we stand for.


  • James Baker 16th Jul '14 - 9:05pm

    @Richard – I would suggest it treats everyone as a potential suspect and criminal by retaining their data ‘just in case’ they might be related to criminal activity.

    The debate around retention and access is an interesting one, countries like Germany manage fine with out mass retention their constitutional court (Bundesverfassungsgericht) struck out a six month retention law.

    If access to communications data was governed by a warrant granted by an independent judicial body, restricted to criminal law enforcement of suitably serious crimes then it might be easier to argue the case that retention was less of an issue. This was another aspect of the ruling:

    “empower an independent administrative or judicial body to make decisions regarding access to the data on the basis of what is strictly necessary”

    You say accessing data can infringe people’s rights, so I assume you would support that second point about a independent or judicial body making the decisions about access to data?

  • James Baker 16th Jul '14 - 9:11pm

    @Tony – Well said. A conference motion supported by Calderdale Liberal Democrat and a number of individual conference representatives has been submitted to FCC condemning DRIP and requesting that the 10 criteria for proportionate data retention set out by the ECJ is included into party policy.

    You can find the text of it here –

  • Richard Dean 17th Jul '14 - 12:54am

    @James Baker
    Get real! No-one is above the law. Therefore, if a crime is committed, the police need to start by treating everyone as a potential suspect. That is normal, accepted, and encouraged, because if some people were automatically ruled out then that would end up as being at best ineffective and at worst corrupt.

    As the process of gathering and assessing information gets under way, some people will be eliminated as a result of alibis, for example, or absent motives, or absent means, leaving some people who will need to be investigated further. At that point the police would be able to apply to access communications data, but the data needs to be available for that to be a realistic help.

    Not even Shami Chakrabati disputes the fact that communications data is a valuable tool in detecting lawbreakers, and that there is a valid balance to be struck between liberty and security.

  • James Baker 17th Jul '14 - 1:05am

    @Richard “No one is above the law”

    So perhaps we ought to abide by the ECJ ruling?

    “Not even Shami Chakrabati disputes the fact that communications data is a valuable tool in detecting lawbreakers” –

    But not lawmakers who are exempt from DRIP. … Flippancy aside you’re arguing a straw man, I say myself it can be useful in criminal cases but you need the checks and balances that the 10 principles set out by the ECJ ruling.

  • Richard Dean 17th Jul '14 - 1:40am

    You say it can be useful? Then you need to collect it! And you have to do that before the crime is committed, because otherwise you won’t be able to access it afterwards. Even Shami did not contest that.

  • James Baker 17th Jul '14 - 8:58am

    Richard no one is saying you shouldn’t retain any data ever so this line of reasoning is just a straw man. What I and others are saying is adopt the 10 principles set out by the ECJ ruling (para 58) . I’ve said this several times even on this article in the comments.

    The problem is DRIP neither follows that principle or seeks to establish judicial or independent administrative oversight to requests to access data. You yourself have acknowledged accessing data can abuse people’s rights so I assume you oppose the bill on that basis.

  • >No-one is above the law.

    ..unless they’re protesting on the roof of a court!

    That asides Richard, I think you need to read what’s being said more carefully. Nobody is arguing that we shouldn’t use this data for national security and serious crime. Many of us are concerned with the safeguarding of that data, the scope of its usage, the timeframes in which it was considered, the power it grants the SoS, etc. I’m glad you’re happy with the legislation, but some of us have different viewpoints and concerns.

    >if a crime is committed, the police need to start by treating everyone as a potential suspect.

    Yes, the ol’ classic “guilty until proven innocent” that our law is founded upon! You should call the cops and tell them about your ideas regarding deductive investigative techniques, suspecting absolutely everyone is going to crack a few cases. What is everyone’s motive? Where was everyone at the time? Who were they with? These investigations are going to take a while, I hope you’ve properly costed this proposal. 🙂

    A nice analogy of the level of social paranoia required to not have paranoia regarding governance.

  • James Baker 17th Jul '14 - 4:19pm

    “A nice analogy of the level of social paranoia required to not have paranoia regarding governance.” – Spot on. Life expediency higher than ever, chances of being a victim of violent crime lowest throughout history. Social paranoia, higher than ever.

    Still thanks Lib Dem parliamentary party for ignoring the European Court of Justice, and UN commissioner on Human Rights, I’m sure throwing our lot in with the Home Office, and the paranoid securocrats, and media hysterics will work out well.

  • Tsar Nicholas 19th Jul '14 - 9:25pm

    I can’t help but think that if this law was going through the Russian Duma, having been proposed by Putin, the party and its leadership would be united in its condemnation of it.

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