Digital Rights Ireland D ` Eja Vu?: Why the Bulk Acquisition Warrant Provisions of the Investigatory Powers Act 2016 Are Incompatible with the Charter of Fundamental Rights of the European Union

By Waranch, Rubin S. | The George Washington International Law Review, January 1, 2018 | Go to article overview

Digital Rights Ireland D ` Eja Vu?: Why the Bulk Acquisition Warrant Provisions of the Investigatory Powers Act 2016 Are Incompatible with the Charter of Fundamental Rights of the European Union


Waranch, Rubin S., The George Washington International Law Review


Introduction

Think of every website you have visited in the last week, or month, or year. Think about the countless emails and text messages you have sent and the number of phone calls you have made. Now imagine that the government has access to the metadata of all of these communications-all the information except the actual content.2 If this does not frighten you, consider the statement of the former U.S. National Security Agency (NSA) Director, Michael Hayden: "We kill people based on metadata."3

Hayden made this statement approximately one year after Edward Snowden's early revelations about the intelligence policies of both the United States and the United Kingdom.4 Snowden described the U.K.'s system as even "more intrusive to people's privacy than has been seen in the US."5 One of his numerous leaks revealed that the U.K.'s Government Communications Headquarters (GCHQ) not only secretly collected and stored emails, Facebook posts, Internet records, and call histories of individuals- irrespective of whether they had ties to crime or terrorism-but that GCHQ also shared such information with the NSA.6

Shortly after Snowden's revelations, both the United States and United Kingdom justified their respective surveillance policies on public safety grounds.7 However, while the United States backtracked on this stance in 2015 when President Barack Obama signed the Freedom Act into law,8 the United Kingdom continued to defend its surveillance practices and marched towards a new expansive surveillance law-the Investigatory Powers Act 2016 (IP Act).9 Prime Minister Theresa May provided a simple justification for the IP Act. She stated, "[i]f you are searching for the needle in the haystack, you have to have a haystack in the first place."10

The IP Act became official law after it received the Queen's royal assent11 on November 29, 2016.12 Since then, critics and supporters of the IP Act have articulated viewpoints that are in diametric opposition to one another.13 Dr. Julian Huppert, a former Member of Parliament (MP), remarked that the IP Act is intrusive and impairs privacy rights.14 Meanwhile, proponents of the IP Act applauded it as a transparent legal framework that permits intelligence agencies to combat terrorist and criminal activity.15 This divide stems partially from the Court of Justice of the European Union's (CJEU) judgment in Digital Rights Ireland v. Minister for Communications.16

In Digital Rights Ireland, the CJEU invalidated the E.U. Data Retention Directive17-a mandate effectively forcing telecommunications providers in the European Union to retain individuals' metadata-because it unjustifiably interfered with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (CFR).18 The CJEU found the Directive's data retention mandate particularly problematic because it lacked sufficient safeguards and created too great a possibility that retained data could be used to draw infallible inferences regarding the most delicate parts of an individual's life.19

Critics of the IP Act adopted a similar sentiment to that of the CJEU in Digital Rights Ireland-the IP Act, like the Data Retention Directive, poses too great a risk to individual privacy rights.20 Though many of the powers created by the IP Act are controversial,21 this Note specifically addresses the IP Act's bulk acquisition warrant provisions. Bulk acquisition warrants permit authorized public authorities to access, in the aggregate, "the 'who', 'where', 'when', 'how' and 'with whom'" of retained metadata upon meeting certain conditions.22 These conditions are overly broad and lack sufficient safeguards to protect fundamental rights to privacy. The United Kingdom should amend the IP Act and develop more exacting requirements before an intelligence agency may obtain a bulk acquisition warrant, because the IP Act's current framework abrogates the rights preserved in Articles 7 and 8 of the CFR.

Part I of this Note provides a background of the U. …

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