RIPA in Europe

Although this summer’s anti-terrorist operation has left a mixed legacy for Metropolitan Police, the story of how Scotland Yard were able to “electronically shadow” and assist in the arrest of a suspected bomber in Italy gave a reassuring glimpse of the effectiveness of the service.

The details were provided by Dr Carlo de Stephano, director of the anti-terrorist branch of Italy’s Interior Ministry, and published on the front page of the Daily Express on August 2. According to an article titled ‘Incredible mobile phone trail to ‘bomber’’, Scotland Yard and Special Branch were able to trace the fugitive suspect via GSM signals – despite him swapping UK and Italian SIM cards – as well as intercept his calls and match his dialect to a small region in the Horn of Africa.

The operation provided a textbook example of the operational usefulness of communications data and the importance of cooperation across international borders.

Yet the data retention question is at the top of the agenda when the UK government assumed the EU presidency on July 1st, and it is worth recapping why. The UK, together with France, Ireland and Sweden, originally submitted a Draft Framework Decision proposing a European wide ‘data retention’ agenda at the Justice and Home Affairs (JHA) Council of 29 and 30 April 2004. The Madrid bombings convinced the JHA that the issue was too urgent to put to a vote of the European Parliament, which is notoriously susceptible to lobbying from the telecoms and legal industries.

The council therefore proposed to place the decision in the hands of the cabinet of each European country, who were asked to use Member State’s legislation to retain communications data ‘for the purpose of prevention, investigation, detection and prosecution of crime or criminal offences including terrorism.’

The communications data under question includes the traffic and location data, and subscriber and user data, that is generated by telephony and internet protocols. The data was to be held for a minimum of 12 and a maximum of 36 months.

In April 2005 the European Parliament hit back. The ‘Committee on Civil Liberties, Justice and Home Affairs’ released a report by MEP Alexander Alvaro that raised ‘sizeable doubts concerning the legal basis and proportionality of the measures’ and recommended the JHA withdraw their proposal. There was widespread speculation in the press that the legality of the proposals would be challenged in the EU Parliament.

However, in the JHA meeting that followed the July 7^th bombing attack in London the council, made it clear that it had no intention of withdrawing the proposal and vowed to reach a unanimous agreement in the formal council meeting of 12 October 2005. The European Commission, the principal executive body with a prerogative to draft legislation in all community areas, then attempted to reassert its authority by declaring it was going to fast-track its own version of the proposals so that they would be ready for debate in October.

A leaked version of a preparatory draft proposed that telephone call data should be held for a minimum of 12 months and Internet service provider data for six. The tension between the two interests is likely to peak during the informal JHA meeting scheduled for Newcastle on 8 and 9 September 2005.

So, what does this mean for law enforcement in the UK? The JHA Council proposals would obviously assist international co-operation between European police forces on the question of using data communications in the fight against organised crime. Yet the proposals could have a number of direct benefits to the domestic data sharing agenda, not least by restarting the debate on the Regulation of Investigatory Powers Act.

RIPA, as it has come to be known, is a definitive example of how difficult it is to hold an open, rational debate on issues that are technically and legally complex, and it is lik