The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Access to Communications Data

15 July 2022

Liberty’s Claim against the Secretaries of State for the Home Department and the Foreign, Commonwealth and Development Office, challenging the Investigatory Powers Act 2016 (“IPA”) from various angles, continues with judgment in the third stage of the judicial review.

In the previous two stages, the Court gave judgment on (1) the compatibility of Part 4 of IPA with EU Law (answer: it is partly incompatible, in respect of access to retained data not being (i) limited to the purpose of combating ‘serious crime’ and (ii) subject to prior review by a court or an independent administrative body), and (2) whether a declaration of incompatibility should be granted under section 4 of the Human Rights Act (answer: no).

In stage three, the Court picked up where it left off in stage one, considering further EU law issues.

The Court held that Part 3 of IPA does not comply with the Watson CJEU requirement for prior independent authorisation of access to communications data.

The decision in Watson, the CJEU decided that the e-Privacy Directive applies to legislation which require a provider of electronic communications services to retain “traffic and location data”, since to do so necessarily involves the provider in “processing” that data for the purposes of article 3(1). Furthermore, legislation which requires a provider to grant a public authority access to retained data also involves the processing of that data by that provider. Accordingly, access to retained data falls within the ambit of the Direction.

The CJEU went on to lay down the requirement that in the fight against serious crime, save in cases of urgency, access by a public authority to retained data should generally be subject to prior review by either a court or an independent administrative body responding to a reasoned application by that authority.

The Court focussed on section 61 IPA: a security or intelligence service may obtain an internal authorisation from a designated senior officer to gain access to data for the “applicable crime purpose” and, in those circumstances, does not need to make an application to the Investigatory Powers Commissioner (cf section 60A).

Giving judgment, Singh LJ and Holgate J held that internal authorisation does not amount to an “independent administrative body” for the purposes of Watson. Accordingly, section 61 is incompatible with CJEU jurisprudence. To that extent, the claim succeeded.

Further reading:

 Liberty v Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs [2022] EWHC 1630 (Admin)

Watson v Secretary of State for the Home Department and Tele2 Sverige AB v Post-och telestyrelsen (Case C-203/15) 

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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