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EU's Highest Court Delivers Blow To UK Snooper's Charter (theguardian.com) 156

"General and indiscriminate retention" of emails and electronic communications by governments is illegal, the EU's highest court has ruled, in a judgment that could trigger challenges against the UK's new Investigatory Powers Act -- the so-called snooper's charter. From a report on The Guardian: Only targeted interception of traffic and location data in order to combat serious crime -- including terrorism -- is justified, according to a long-awaited decision by the European court of justice (ECJ) in Luxembourg. The finding came in response to a legal challenge initially brought by the Brexit secretary, David Davis, when he was a backbench MP, and Tom Watson, Labour's deputy leader, over the legality of GCHQ's bulk interception of call records and online messages. Davis and Watson, who were supported by Liberty, the Law Society, the Open Rights Group and Privacy International, had already won a high court victory on the issue, but the government appealed and the case was referred by appeal judges to the ECJ. The case will now return to the court of appeal to be resolved in terms of UK legislation.
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EU's Highest Court Delivers Blow To UK Snooper's Charter

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  • A Horrible Law (Score:5, Interesting)

    by TuxThePenguin2205 ( 1031140 ) on Wednesday December 21, 2016 @10:21AM (#53529705)
    Brilliant news, lets hope this judgement sticks.
    • Re: A Horrible Law (Score:4, Insightful)

      by Anonymous Coward on Wednesday December 21, 2016 @10:47AM (#53529927)

      More like try again after you've Brexited and Common Sensexited.

    • by ytene ( 4376651 ) on Wednesday December 21, 2016 @10:51AM (#53529969)
      If I had "Mod Points", I'd mod you up for that observation...

      Several things interest me about this particular piece of legislation:-

      1. It Doesn't Work [1] - When the United States located Osama Bin Laden in Pakistan, it was revealed that no telephone line, no internet connection and no cell phone was connected to the compound in which he lived. In fact, it was a "black spot" for services. Instead, trusted couriers carried encrypted USB sticks by hand. Pretty good OpSec, by all accounts. In other words - the really dangerous terrorists out there do not use the internet to plan their activities or communicate with each-other; they are too smart for that

      2. It Doesn't Work [2] - When major incidents have happened [such as was the case with the Paris Attacks, the monitoring of the perpetrators [which had been taking place] was not effective in *STOPPING* the atrocity, it was only useful for telling us that within 24 hours of the incident, the partner of one of the terrorists had fled the country and entered Syria via Turkey. Yes, this might be useful at stopping secondary or tertiary attacks, or at finding the support network, but it won't actually stop the event itself.

      3. It Doesn't Work [2] - When investigators looked into the perpetrators of the Boston Bombing in the wake of the marathon attacks, it was again discovered that the perpetrators had been monitored by the security agencies, but that even though they had been "red flagged", the responsible agency had discounted the information because they had so much other data to review. The blanket dragnet meant that they spent all their time triaging initial cuts of data, not enough time following up on reasonable leads.

      4. It's An Erosion of the Presumption of Innocence - The fact that *everyone* is caught up in the net [unless you are an MP or member of the judiciary, etc] means that every single person in the UK is presumed guilty of an offence - without being charged. The data is being collected "in case you do something bad"...

      5. The Damaging Risk Of Leaks - There have been too many examples of data theft or accidential leakage to bother citing examples here; the fact is that such a treasure-trove of data would be too tempting for organised criminals. In the United States, insurance companies reported that in the wake of the TSA requirement for "approved locks" on all airline luggage, claims against theft of valuables from checked luggage have sky-rocketed. A system set up for one benefit - passenger safety - is being abused by another threat - light-fingered airport staff - resulting in millions being claimed, and tens or hundreds of thousands of passengers becoming victims every year. We should expect the same sort of widespread damage once the data is being collected. Remember - it is not being collected and held by a government agency, but by the telecommunications providers. Like TalkTalk. [ Data Leak Central ].

      6. Erosion of Basic Freedoms - Perhaps the most significant change, however, is the way that the relationship between the state and the citizen changes as a result of this. Unlike, say, the US [which has a constitution], the UK has no such basic safety net for human rights. What this means is that more and more powers are being given to government and which are being mis-used.

      As an example of this, when researchers looked into a similar and previously enacted piece of legislation [the Regulation of Investigatory Powers Act], it was discovered that among the more notable and widespread uses of the law came from actions taken by local councils who were spying on residents suspected of "cheating" the school catchment area process. This is a mechanism by which children are enrolled in schools based on their home address. In other words, they way that legislation is "sold" to voting MPs and the way that it is actually used are two entirely different things.

      But lastly, perhaps, is the fact that this would/will put so much power in the hands of the state that it makes the individual citizen defenceless against abuse by that state. And that is a very frightening place for us to be.
      • by AmiMoJo ( 196126 )

        It would be economic suicide if they ever tried to actually make it work. They would need to erect a firewall to keep out all foreign services which don't cooperate, ban VPNs, ban most encryption...

        The only way this law can actually work for them is if they abuse it.

      • by fyonn ( 115426 )

        > The fact that *everyone* is caught up in the net [unless you are an MP or member of the judiciary, etc]

        as I understand it, their data is still recorded, it's just that the security services (or one of 40+ other agencies which have the right to access that data[1]) have to get a warrant signed by the Home Secretary, and approved by the Prime Minister to access it. of course, I don't know who actually has to ask for that warrant? if the police turn up to an ISP and ask for the data of Helen Jones, does t

      • by AHuxley ( 892839 )
        It works for overtime, contractors, US contractors installing more hardware and software. Trips for UK staff to the USA to learn about advances in US, NSA and contractor hardware and software.
        The ability to show political leaders in the UK how the world is more digital and how the GCHQ can collect it all if only they had more staff and got more budget growth.
        Overtime in installing new US hardware. Overtime to test new US hardware. Overtime in keeping new US hardware running. Language skills and transl
      • by dcw3 ( 649211 )

        I'm going to preface this by stating flat out that I don't like the idea of the new UK law. That said...

        1. Incorrect. Initial reports stated there was no internet at the compound. Subsequent released showed that there was indeed a fiber cable.

        2. You don't always hear what's been stopped, and obviously, you do hear about what slips through. "It Doesn't Work" is only your assumption.

        3. The operational failure to snag these two is anecdotal, and only an indication that in the US, the standard for picking s

    • Very much so. In this dystopian world it seems we've been living in for the last mumble-mumble years, it's good to see that not everyone on the planet is apparently suffering from lead poisoning.
  • by Chris Mattern ( 191822 ) on Wednesday December 21, 2016 @10:22AM (#53529709)

    Isn't the UK leaving the EU?

    • by MasseKid ( 1294554 ) on Wednesday December 21, 2016 @10:25AM (#53529745)
      Leaving is not the same as left. Until they actually have left, they are still bound to the laws and decisions of the union.
      • by dcw3 ( 649211 )

        So, if the UK implements it anyway, and the EU takes them to court, how long before the trial/conviction? And, how do they go about punishing the UK? Not that I agree with the law, but seriously, why should the UK give a fuck?

    • by Maritz ( 1829006 ) on Wednesday December 21, 2016 @10:34AM (#53529825)
      The UK will not leave the EU until 2 years after Article 50 is triggered. At the moment, they're saying next March. So the UK will remain part of the EU until at least March 2019.
      • The UK will not leave the EU until 2 years after Article 50 is triggered.

        ...or an agreement is reached before that deadline. However since it has been 6 months from the referendum result and the government still hasn't even decided what to negotiate for yet I suspect we don't have to worry about it happening before the two year limit.

        • by Coisiche ( 2000870 ) on Wednesday December 21, 2016 @11:11AM (#53530137)

          it has been 6 months from the referendum result and the government still hasn't even decided what to negotiate for yet

          In any industry I think a project manager who had only produced vague statements with nothing concrete for 6 months would be looking at quick receipt of a P45. Maybe even less than 6 months.

          Unfortunately we can't get rid of the government for another 3 and a half years. And even then it will be tricky because of boundary changes favouring the Conservative party (which they probably have to hurry and pass while they still have a working majority). Although if they don't get Brexit through there might be some huge swings to UKIP, but I don't think they would ever get enough seats to form the government, and if they do get Brexit through and the leave voters don't immediately find themselves better off they are going to blame the Conservative government. No wonder Cameron resigned.

          • Re: (Score:2, Insightful)

            by jwdb ( 526327 )

            I'd like to see some evidence for your assertion that they've produced nothing concrete.

            You talk as if Brexit were easy. We're talking about disentangling an entire country's legislative and economic system from decades of cooperation with other countries, with a very real risk of recession and diplomatic repercussions if it's screwed up. I can't see how they'll do that properly in the two years they have, much less six months.

            Hell, it probably took them at least six months to figure out in what areas of go

          • In any industry I think a project manager who had only produced vague statements with nothing concrete for 6 months would be looking at quick receipt of a P45. Maybe even less than 6 months.

            If you're in a situation in any industry where you need to negotiate with your biggest competitor for a hugely favourable deal after gloriously pissing them off and from a really weak starting position with the conditions that negotiations can't even start before a clock is triggered... The project manager would quit within a week. It's an untenable position to be in.

            I happily heap shit on the government for a lot of things. Not rushing into negotiations for major international trade deals that will likely

    • by serviscope_minor ( 664417 ) on Wednesday December 21, 2016 @10:35AM (#53529837) Journal

      Isn't the UK leaving the EU?

      Define: leave.

      Seriously, whothefuckknows. The referendum was merely to "leave". There was no vote on what leave means, what qualifies as leave and what the government must or must not do in order to satisfy "leave". Actually technically nothing, since it wasn't binding, but assuming they follow through (seems likely in some form) there's no mandate whatsoever on any particular form of leave.

      That's one reason why the referendum was incredibly stupid because it asked an almost completely undefined question. The only thing that "leave" means definitively is not be a voting member of the EU. So, we must lose our influence. However, unless we want to head on over to utter irrelevance, we're still going to have to deal with the EU. That means we will have to sign treaties of some sort which means we will have to agree to behave in a certain way. Because unlike in the bizarre fantasy of many brexiters, no one will sign a trade deal that allows you to do whatever the fuck you want.

      So, it may or may not be that we have to agree to be under the remit of this court if we want don't want to be completely shafted. So even if we leave, we may well have to agree to abide by the rulings.

      And anyway, we're still a member until up to 2 years (or more!) after Article 50 is invoked which means we're still obligated to abide by the rulings.

      Bear in mind that Norway is not a member of the EU. So, while sticking to the only definition of "leave" we have, we could leave and sign a Norway style deal which would mean everything is exactly the same as it is now except we pay more, get a smaller rebate and have no voting rights. We could do that and still "leave". Or we could just close borders, expel all foreigners and fuck right off into the North Sea, or anything in between.

      • by lokedhs ( 672255 )
        Of course we know. Didn't T.M. make is absolutely clear what brexit means? It means "brexit".
    • by hey! ( 33014 ) on Wednesday December 21, 2016 @10:52AM (#53529971) Homepage Journal

      Because they only want to sort of leave the EU. They're looking for some kind of intermediate state where they have the same access to European markets European companies do. Realistically that means British companies will have to abide by most if not all EU regulations and human rights restrictions.

      Brexit would be quite simple if what the UK really wanted is complete independence. Both sides would set up the border crossings and customs stations that started closing down in 60s, and negotiate access to each others markets on a case by case basis. This would be a perfect example. The EU is not going to allow spying on its citizens by a foreign power (the UK), so if the UK wants to sell financial services in the EU it'll just have to agree to be bound by EU human rights rules.

      • " They're looking for some kind of intermediate state where they have the same access to European markets European companies do. "

        Maybe they could call that intermediate state the "European Common Market" or something?
        • by hey! ( 33014 ) on Wednesday December 21, 2016 @11:29AM (#53530319) Homepage Journal

          Sure. But you're still bound by the rules of that market. UK companies would still be subject to Brussels, however UK/EU relations would take on a distinctly bilateral flavor instead of the old multi-lateral flavor of the old Common Market days. This would put the UK at more of a disadvantage relative to the rest of Europe when it comes to bargaining power, both in comparison to its pre-Brexit position in the EU and it's pre-EU position in the Common Market.

          Really the only way for the UK to obtain a more favorable position would be if the entire EU collapses. Which the rest of Europe is keenly aware of. That's why the rest of Europe isn't going to cut Britain any slack on Brexit. If other EU members see that Britain negotiated itself a more favorable position by exiting the EU, then other nations will follow. So there are three possible outcomes:

          (1) Britain manages to negotiate a symbolic exit with little de facto impact.
          (2) Britain is treated like any other foreign country in the European Market.
          (3) The EU collapses and the former members try to salvage something by reviving the old Common Market system.

          The only outcome that is potentially economically favorable to Britain is (3). The country that gains the most from Brexit is Russia.

      • Remember, the UK referrendum vote basically split the country. 51.9% voted leave; 48.1% voted remain, so to say "the UK wants" this or that, is unfounded: we're an entirely divided country on this matter.

        • And that is before you take into account the geographical split in the votes. Personally I see two outcomes:

          1) The UK gets a Brexit lite deal with all the benefits of being able to say they Brexited but with none of what the people voted for, but economically still in a position to continue trade as previously.
          2) The UK gets the full Brexit package and changes its name to Ununited Kingdom as Ireland and Scotland break from the union to re-enter the EU of which they are hugely in favour.

          • by lokedhs ( 672255 )
            You probably meant to say "Northern Ireland". Ireland is already an independent country which is a member of the EU and is not impacted by brexit.
    • yep, but it depends "how we leave" i.e. what deal we get and in lots of cases still being under the jurisdiction of EU law and its courts could be part of it
  • You could power the national grid by harnessing Davis' cognitive dissonance. A court case decided in his favour against his employers by one of the institutions he's responsible for ridding us of.
  • by bagofbeans ( 567926 ) on Wednesday December 21, 2016 @10:47AM (#53529929)

    EU also ruled that UK police have to delete it's DNA database of innocent people, but that hasn't happened yet hazzit?

  • This was "The Data Retention and Investigatory Powers Act 2014". A piece of emergency legislation in order to provide a short term framework for security services to actually be able to actually do anything after a repeal of the earlier legislation for similar reasons. This will expire a week on Saturday.

    It will be replaced by the Investigatory Powers Act 2016. Perhaps this ruling will be used as a precedent for challenges to the latest bill.
    • They way I understand the EU "Data Retention Directive" is that telecom, ISP and other communication providers _are obliged_ to retain communication meta data of everybody and everything, for a minimum of 6 months. The UK act might go even further, and the devil is in the details. However, I find it a bit ironic that the EU court strikes down on this, when they have a thorn in their own eye.

      https://en.wikipedia.org/wiki/... [wikipedia.org]

  • I find it interesting that the individual, David Davis, who filed the complaint with the EU is also a strong member of the Brexit group.

    No, no, no, we do not want to be part of the EU. Oh, wait a minute. We want to take advantage of some of its laws. In that case, well, never mind. But for everything else we need to get out of the EU.

    It's good to see that the USA doesn't have a lock on political hypocrisy.

  • by WillAffleckUW ( 858324 ) on Wednesday December 21, 2016 @02:41PM (#53532443) Homepage Journal

    Which applies to all the Canadians working in the UK.

    Under the Canadian Constitution, they have an explicit right of Privacy, and this "law" violates the right that treaty protects.

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