MPs successfully challenge UK government in High Court

Two MPs, David Davis (Conservative) and Tom Watson (Labour), with human rights advocacy group Liberty, have won a challenge in the High Court against the UK’s data retention law (DRIPA). The ruling finds against the UK law on several grounds, including incompatibility with the right to privacy, and a lack of clarity in the rules applying to access requests. Since the current rules allow a very wide range of public authorities to request communications data, and to do so without independent approval, there is a clear implication that the UK’s approach to data retention fails the proportionality test.

It’s worth stressing just how exceptional it is for members of parliament to challenge primary legislation in court, let alone to win. After all, the first place primary legislation should be challenged is in the parliament to which they have been elected. But DRIPA’s passage through parliament was not normal. It was rushed through parliament with a single day’s debate – essentially ensuring that it could not receive proper parliamentary scrutiny.
The government tried to explained away this haste by claiming that the bill was “emergency legislation”, brought in because the prior legislation had, in turn, been ruled non-compliant with EU law. That ruling was itself delivered well in advance of the presentation of DRIPA to the house: there was no excuse for the UK government to have failed to foresee that requirement.
According to the Security Minister, John Hayes, opposition to the government’s data retention plans comes from a “paranoid liberal bourgeoisie”, intent on hamstringing law enforcement even if it means criminals and terrorists run amok. Of course, the accusation of paranoia might carry more weight if every “paranoid” prediction about the government’s use and abuse of surveillance powers hadn’t been accurately pointed out by the late Caspar Bowden and amply proved by the Snowden disclosures.
Mr Hayes says the government ‘disagrees absolutely’ with this judgment and fully intends to appeal against it. In other words, despite having had DRIPA and its predecessor struck down, the government’s view is that no change of course is needed, and they can keep the same data retention powers if they go on saying that’s what they want.
There’s an old quip, isn’t there, which defines insanity as repeating the same actions while expecting a different outcome. Far be it from me to accuse the current government of insanity, but I have to wonder how rational it is to expect an appeal to succeed.

Caspar Bowden

Caspar died today. Three simple words that encompass so much.

Twitter has, understandably and gratifyingly, lit up with messages of condolence, admiration and regret – and so it should. The privacy advocacy community has lost one of its most capable members, and feels that loss keenly. But we are all affected by the issues on which Caspar fought: the regulation and availability of cryptography, the interception of communications, the governance of surveillance, the equal application of human rights. There isn’t a person on the planet whose interests are unaffected by these issues, and we are worse off for losing Caspar’s efforts on our behalf.

Let me give two three little snapshots from my memories of Caspar.

The first is from a meeting of the Enterprise Privacy Group, in about 2007. Two or three of us had just arrived and were clustered near the coffee table, talking about ethics and data protection. Caspar arrived, and was pouring himself a cup of coffee a few feet away from our group. He carried it over to us and, as he arrived, said

“Well, I favour a Rawlsian model – because unless you can point to a basis in justice, none of the other approaches can work anyway.”

It wasn’t said as a put-down or out of intellectual snobbery; he had simply grasped the essentials of our conversation within the time it took to pour a cup of coffee, and was contributing his conclusion. Of course, the rest of us had to sneak off later and Google “Rawls on Justice” to refresh our memories <cough>, but the truth of it is, in the work I’ve done on ethical data-handling in the last couple of years, I have come back, time and again, to the principles Caspar set out in that conversation some 8 years ago.

There was mischief in Caspar too, and my second snapshot is from Berlin, where Caspar and I were among the invited participants in an Article 29 Working Group meeting. As ever, a group beer was proposed for the evening, and we all piled into taxis to get to an otherwise unremarkable Bierhof somewhere outside the city. I found it hard to believe that we couldn’t have found somewhere just as good in town, and grumbled something to Caspar along those lines. He, of course, knew exactly where we were, and said “Yes – but there’s a certain irony, isn’t there, in drinking beer with a group of European Data Protection Supervisors, right next to the Wannsee”.

The third is from QCon 2014, where Caspar gave a talk on “Mistrusting Trust”. The talk was excellent, and you can replay it here… but my abiding memory wasn’t that; it was that about 4 minutes in (as you’ll see if you watch the video), Caspar’s laptop reset, and threatened to melt down. It was overheating partly because it was a bit old, but partly because Caspar was running Qubes on it, so as to be able to boot a virtual OS in order to show his slides. Now, lots of privacy advocates love the idea of only using virtual machines, and killing them in between sessions of browsing, email and whatever… but an awful lot of us can’t be bothered to go to the inconvenience, when it comes down to it. Caspar could – even if it almost reduced his laptop to a pool of smoking black plastic in front of an audience.

To say that people sacrifice privacy for convenience is such a cliché most of us don’t even reflect on it any more. But Caspar’s example should remind us that too many of us sacrifice more than just privacy for the sake of a little convenience. Caspar had always done his homework. How many of us hold forth on the laws governing data protection, interception, surveillance and so on without actually having read them all the way through? I know I’m guilty on that score – but Caspar had read them – and not just for one country, but for the UK, and the US, and the EU, and France, and so on. How many of us read them and then forget the detail, or don’t bother to really think through the implications, and publish our analysis, and fight for how we think it should be?

And of course it wasn’t just the law. As his comment on Rawls indicates, Caspar was scarily well read in all kinds of areas, and he had a level of recall which many policymakers had occasion to find embarrassing.

Yes, he could be abrupt, and yes, he often ‘bent’ convention by asking direct and probing questions in ways that risked alienating the policymakers he sought to influence. But I never saw him do so rudely, inappropriately, or in a way that demonstrated anything less than total integrity. That took strong moral principles, intellectual rigour, and courage.

Caspar – thank you for your dedication; we’re worse off without you, and we’ll miss you. And I wish I’d said that to you before you died.

Speaking of trust…

I received a letter recently from (apparently) NHS England. In it, they require me to confirm my contact details to them, or face being removed from the patient list of my local GP (whose patient I have been for the last 30 years… in fact, his surgery has changed address more frequently than I have in that period).

In the letter, NHS England note that GP practices need accurate contact details in order to be able to contact me to arrange appointments and vaccinations, report test results, arrange the details of long-term care for chronic illness, or enable a hospital to write to me. Those are all true – but all those needs can be satisfied by my confirming my address details to the practice itself. There is nothing in their letter which convinces me to give my personal data to a third party – except their threat to have me de-listed if I fail to do so. “If you do not respond within four weeks from the date of this letter then we will assume that you have moved away”, they say. Which is odd, since I had a GP appointment a couple of months ago.

When I mentioned this on Twitter, the responses were interesting. Some people simply assumed that the letter was a phishing attempt, and advised me to ignore it… which is an interesting trust problem for the NHS to consider. Others suggested that there is a second purpose for NHS England to collect the data, which is to do with the way in which they fund GP practices. If that were the case, you might expect it to appear among their stated purposes for collecting the personal data, in the letter on the basis of which you are expected to confirm your details. It does not – though if you visit the NHS England Shared Business Services website and go to their FAQ, you will find it mentioned. Again, if you go to their website, you will find some explanation of the role of Shared Busines Services in relation to GP surgeries… but “Shared Business Services” appears nowhere on the letter, which mentions only “NHS England”. To all appearances, this is a third party organisation asking for my personal data.

Taking a hard-hearted financial view, you might say that it’s in their financial interest (and therefore, indirectly, in mine) to ensure that they aren’t paying GPs for patients who don’t exist. But there are some flaws in that argument:

  • I’ve seen my GP within the last 3 months. It’s therefore unlikely that I have moved out of the area. There must be other patients whose records indicate that they are more likely to have gone away; if NHS England are going to incur the cost of writing to anyone, shouldn’t they prioritise apparently “dormant” patients over recent, “active” ones?
  • In the short term, NHS England might indeed save some money by finding a pretext (i.e. my non-response) to remove me from the paid-for headcount at my GP’s surgery. However, since I am a genuine, current patient, if I were de-listed I would have to apply to be re-listed, which would incur extra, unnecessary administrative cost.

But, economics aside, isn’t there a law against collecting data for one purpose, and using it for something else? I rather thought that was what the Data Protection Act was for… but then again, the NHS’ recent history with regard to data protection is tarnished, to say the least. For instance, the HSCIC recently admitted that it simply ignored patients’ requests to opt-out from the scheme, which they had designed as “opted-in by default” in the first place. What’s more, it emerges that cannot distinguish between patients wishing to opt out of having their data shared with third parties, and patients not wishing to opt out of services such a referrals or e-prescribing.

So let’s recap the various failure modes illustrated by these two instances:

  • Designing a system as “opted-in by default”, despite the fact that it involves data-sharing with commercial and public-sector third parties, and that it processes sensitive personal information;
  • Failing to act on opt-out requests;
  • Offering different types of opt-out (good), but then failing to process them accurately (bad);
  • Dubious prioritisation of administrative effort;
  • Lack of transparency about purpose of collection;
  • Threat of de-listing for non-compliance.

Just take a look at those, and ask if they would be acceptable in clinical/surgical practice, as opposed to health service administration.

It seems to me that we have failures, here, of design, technical implementation, governance, transparency and consent – and all of those erode patients’ trust. Public sector bodies, world wide, are desperate to reap the benefits of digital infrastructure, and rightly so: it’s in our interest as citizens that our public sector services should be efficient, cost-effective and technically up to date. But data controllers must show that they are safe and worthy custodians of citizens’ personal data, and that requires a far more mature approach to transparency, informed consent, and genuine opt-out. Stampeding headlong in pursuit of the potential financial benefits of innovation, while ignoring the concomitant responsibilities, is irresponsible and immature.

The NHS is in its 60s; if we are to trust it to exploit technology effectively, in our interest and on our behalf, it needs to grow up.