Surveillance law, data retention and risks to democracy and rights

In Klass and others v Germany, the first surveillance case before the European Court of Human Rights, it was acknowledged that the threat of secret surveillance posed by highlighting its awareness ‘of the danger such a law poses of undermining or even destroying democracy on the ground of defending it.’ This thesis considers a form of surveillance, communications data retention as envisioned in Part 4 of the Investigatory Powers Act 2016 and its compatibility with the European Convention on Human Rights. This thesis highlights that communications data is not only just as, if not more intrusive than intercepting content based on what can be retained. It also reveals that communications data is mass surveillance within surveillance. Additionally, this thesis demonstrates that communications data does not just interference Article 8 of the Convention, but a collection of Convention Rights including Articles 9, 10, 11, 14, Article 2 Protocol 4 and potentially Article 6. Each of these rights are important for democracy and Article 8 and privacy underpins them all. Furthermore, this thesis highlights that obligation to retain communications data can be served on anything that can communicate across any network. Taking all factors highlighted into consideration, when assessed for compatibility with the Convention, communications data retention in Part 4 not only fails to be ‘in accordance with the law’, it fails to establish a legitimate aim, and fails to demonstrate its necessity and proportionality. In establishing that communications data retention as envisaged in Part 4 of the Investigatory Powers Act 2016 is incompatible with the Convention, it demonstrates that it undermines democracy and has sown the seeds for its destruction. Not only would the findings of this thesis create an obstacle to an UK-EU post- Brexit adequacy finding, it would have an impact beyond UK law as many States in Europe and outside seek to cement data retention nationally.