Protecting Information Privacy

This report for the Equality and Human Rights Commission (the Commission) examines the threats to information privacy that have emerged in recent years, focusing on the activities of the state. It argues that current privacy laws and regulation do not adequately uphold human rights, and that fundamental reform is required. It identifies two principal areas of concern: the state’s handling of personal data, and the use of surveillance by public bodies. The central finding of this report is that the existing approach to the protection of information privacy in the UK is fundamentally flawed, and that there is a pressing need for widespread legislative reform in order to ensure that the rights contained in Article 8 are respected. The report argues for the establishment of a number of key ‘privacy principles’ that can be used to guide future legal reforms and the development of sector-specific regulation. The right to privacy is at risk of being eroded by the growing demand for information by government and the private sector. Unless we start to reform the law and build a regulatory system capable of protecting information privacy, we may soon find that it is a thing of the past

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

Criminal Justice and Police Cooperation between the EU and the UK after Brexit: Towards a principled and trust-based partnership. CEPS Task Force Reports

Brexit poses major challenges for future interaction between the EU and the UK in the areas of criminal justice and police cooperation. A new legal framework will be required to sustain the EU’s relations with the UK – an active participant in numerous EU criminal justice and police cooperation instruments – once it leaves the Union. The negotiations on the exit of the UK from the EU must grapple with the crucial question of how and to what extent can the two parties continue to maintain effective arrangements for fighting cross-border crime, while at the same time guaranteeing compliance with the rule of law and fundamental rights. This report is the result of intensive deliberations among members of a Task Force set up jointly by CEPS and the School of Law at Queen Mary University of London (QMUL), who met regularly throughout the first half of 2018. It examines the feasibility of retaining the current EU–UK framework for cooperation in these critical fields and explores possible alternatives to the status quo. It also delves into the conditions under which the UK could continue to participate in EU instruments and relevant EU agencies engaged in cooperation in criminal matters and to have access to justice and home affairs databases and other information-sharing tools. In their conclusions, the members offer a set of specific policy options for the EU and the UK to consider after Brexit with a view to developing an effective partnership in the areas of criminal justice and security based on trust and shared values

Facebook regulation: a process not a text

Discussions of platform governance frequently focus on issues of platform liability and online harm to the exclusion of other issues; perpetuate the myth that ‘the internet’ is unregulated; reinforce the same internet exceptionalism as the Silicon Valley companies themselves; and, by adopting the language of governance rather than regulation, diminish the role of the state. Over the last three years, UK governments, lawmakers and regulators, with expert advice, have contributed to the development of a broader range of regulatory concerns and options, leading to an emergent political economy of advertiser-funded platforms. These politicians and regulators have engaged in a process of sense-making, building their discursive capacity in a range of technical and novel issues. Studying an ‘actually existing’ regulatory process as it emerges enables us to look afresh at concepts of platform regulation and governance. This working paper has a particular focus on the regulatory approach to Facebook, which is presented as a case study. But it engages more widely with the issues of platform regulation through a careful interpretive analysis of official documentation from the UK government, regulatory and parliamentary bodies, and company reports. The regulatory process uncovered builds on existing regulatory frameworks and illustrates that platform regulation is a process, not a finished text

Client legal privilege and federal investigatory bodies: discussion paper

This paper contains 42 proposals aimed at addressing lengthy and costly disputes over client legal privilege in federal investigations

Putting the ‘Public’ back into Inquiries: Assessing the success of Public Inquiries in Australia

Public Inquiries are significant, authoritative institutions established by governments to address some of the most important and controversial issues in public policy and society. Inquiries are powerful mechanisms to investigate and advise on matters of public concern. They are designed to right wrongs and address egregious breaches of public trust. However, Public Inquiries are not just tools of government. They are also tools of society, and they express a significant dimension of the social contract, the reciprocal acceptance of obligations between citizens and their government. Public Inquiries often respond to crises, scandals, or the incremental development of inadequacies, which violate public expectations of the reciprocal obligations between State and citizens. The central objective of this thesis is to assess the success of Public Inquiries in Australia. Public administration scholars and political scientists generally contemplate success from the point of view of government. This is problematic because it has resulted in less than adequate recognition of the ‘public interest or common good’ served by Public Inquiries (Prasser and Tracey 2014, p. 227). On the basis of illustrative case studies, the thesis argues that including citizen perspectives provides a powerful means by which to assess the success of Public Inquiries in repairing breaches of societal expectations. The literature review (Chapter 2) is utilised systematically to distil three recurring propositions regarding the assessment of success of Public Inquiries. These propositions suggest that an assessment of the success of a Public Inquiry should examine the ways in which a Public Inquiry: • has responded to a crisis and restored legitimacy; • given voice to the public, including stakeholders, ‘victims’ or experts; and • provided the opportunity for policy change and improved outcomes. Based on these three propositions, and their theoretical foundations, an analytical framework is derived to assess the success of Public Inquiries (Chapter 3). Three Public Inquiries are selected as case studies for analysis, each corresponding to a distinct ‘type’ of Public Inquiry. The first type is the ‘Investigatory Inquiry’ (Inquiry into Certain Australian Companies in Relation to the UN Oil for Food Programme 2006; Chapter 4). The second type is the ‘Policy Advisory Inquiry’ (Queensland Child Protection Commission of Inquiry 2013; Chapter 5). The third type is the ‘Hybrid Inquiry’ (Queensland Floods Commission of Inquiry 2012, Chapter 6). The analytical framework is applied to each case study (respectively in Chapters 4, 5 and 6). The thesis then draws out the implications of these findings for scholarship (Chapter 7). For Public Inquiries to be positioned as part of the social contract, the perspectives of citizens could be more effectively incorporated. The case study analyses reveal various proxies or markers of citizen perspectives. These include media commentary, subsequent Inquiries, and legal action. Further analysis of the case studies using these proxies provides significant insights into how citizens assess the success of the Public Inquiry. The thesis then moves to theory building and argues that despite their many variations, the overarching purpose of a Public Inquiry is to rebuild the social contract after breach. Three enduring functions of Inquiries are identified: to respond; to hear; and to prevent. The analytical framework applied to the three case studies is revised to include citizen perspectives in order to assess success. That is, an assessment of the success of a Public Inquiry should examine three characteristics. First, the ways in which the Public Inquiry is trusted to make sense of the events or the violation of expectations. Second, the ways in which people were heard. Third, the ways in which the Public Inquiry rights wrongs and thus changes policy, processes or outcomes for the better

Privilege in perspective: client legal privilege in federal investigations

This report recommends 45 changes to the handling of claims of client legal privilege over material sought by federal investigatory bodies and royal commissions of inquiry. The inquiry found general support for maintaining privilege as a fundamental right of clients, which only should be abrogated or modified in exceptional circumstances. However, privilege must be balanced with the other public interest in ensuring efficient, effective investigations. The central idea behind the ALRC’s recommendations is the need for a single federal statute addressing the application of privilege in all federal investigations. It identified over 40 federal investigatory bodies with coercive information-gathering powers, as well as Royal Commissions. These include: law enforcement agencies, such as the Australian Federal Police; bodies concerned with the collection or administration of public funds—such as the ATO, Medicare and Centrelink; the major corporate regulators, such as ASIC and he ACCC; and a number of smaller, specialised regulators focusing on specific industries, such as the Fisheries Management Authority