The report on the intelligence relating to the murder of fusilier Lee Rigby, released by the Intelligence and Security Committee of Parliament, raises some complex privacy issues, says Paula Barrett, partner and head of privacy at Eversheds.
She asked: ‘To what degree do we want internet and other communication service providers to be cast in the role of counter-terrorism surveillance agents? In addition to a review of the actions of the various government anti-terrorism and law enforcement agencies, the inquiry looked at the lack of proactive monitoring of communication by service providers and expressed frustration at the lack of legal framework that allows the mainly US-based providers to be compelled to respond to requests for assistance.’
While Barrett acknowledged that there is some debate about the route that may take to be effective, she said that we need to consider the balance and oversight that is required. She said that these requests might comprise proactive monitoring and would go beyond the proposals previously tabled and the retention rules already shot down by the European Court of Justice.
Barrett continued: ‘The service providers already find themselves cast in an invidious position, caught in an increasingly complex web of data privacy, communications and counter-terrorism rules across multiple jurisdictions. Their customer base, in the post-Snowden era, becomes ever more concerned about invasion of privacy, prompting some to offer encrypted solutions and engage in significant litigation to protect customer data against access.
‘The committee’s report suggests that these privacy concerns should not be allowed to prevail if a terrorist atrocity could be averted. The providers themselves have indicated they would welcome a clear legal framework to assist. How wide, though, does the surveillance net get cast to catch lone wolves, and are staff of these businesses the right people to conduct this? The legal frameworks on data and communications yet again fall down at geographic borders that don’t exist in the digital world and raise challenging questions for societal values. There are no easy solutions.’