David Davis calls for greater transparency in police use of communications data


As reported in the Guardian:
UK police requests to access phone calls or emails are granted 93% of the time

Ministers are facing calls to curb the scale of police access to private phone and email records, after a report by privacy campaigners found officers were making a request every two minutes and getting access in 93% of cases.

The figures, released to Big Brother Watch under freedom of information laws, found there were more than 730,000 requests for communications data between 2012 and 2014 from forces across the UK. There were annual increases in applications in each of those years, peaking at just under 250,000 last year, according to the report.

It also uncovered a huge disparity in how many requests were being allowed by each force, with some, such as Essex, rejecting 28% of requests but others, such as Cheshire, turning down only 0.1%.

The report comes at a sensitive time for the government, which is sitting on an official report about surveillance powers by David Anderson QC, who has warned that it “won’t please everybody”.

At the same time, Theresa May, the home secretary, is seeking to revive legislation that would give the security services and police extra surveillance powers, including strengthening the warranted powers of police and spies to intercept the content of calls and messages as well as communications data.

Critics of proposals for the new investigatory powers bill – unveiled in the Queen’s speech – say there is already too much information gathered on the activities of citizens and insufficient transparency about whose information is accessed, what kinds of cases the data relates to and how each request is approved.

In light of the Big Brother Watch report, David Davis, a Conservative former shadow home secretary, said the scale of police access to communications data was “out of control” and called for officers to get approval from a judge before accessing the information.

“Before we make any further changes to the law, we need to understand it and we need to get it back under control, which means a better warrant system or judicial approval system,” he said.

Davis also said the “astonishing range” of rejection rates – from 0.1% to 28% – suggests there is something wrong with the way requests are being handled. He said it was already a “disgrace” that there was not more information on how the police are using private data, saying there was “overwhelmingly a case for massively more transparency in this area”.

“The government’s primary argument for extending the ability to collect communications data is that somehow there is a shortfall,” he said. “But they refuse to provide the information that would prove or disprove their case.”

Tom Watson, the campaigning Labour MP who is a favourite to be deputy leader, said: “Our intelligence and police services remain in danger of losing public legitimacy for the surveillance they conduct.

“It’s absolutely vital that people understand for what reason this information is requested so frequently. Of course, there has to be secrecy about the nature of the intelligence but it is not unreasonable for public policymakers to know the terms on which these investigations are undertaken,” he said.

The government is bracing itself for a battle over civil liberties in the next few years, as May makes the case for more powers for the security services and police to access private communications data and intercept the contents of messages.

The legislation, formerly known as the communications data bill, was previously blocked by the Liberal Democrats in 2013 at a time of renewed scrutiny of the intelligence services over the revelations of US whistleblower Edward Snowden.

May has sought to justify the revival of the surveillance bill by saying police forces and the security agencies have a gap in their capabilities because their current powers do not allow them to access certain new technologies.

However, Renate Samson, chief executive of Big Brother Watch, said the tiny rate of rejections raised questions about the claim that police forces are being frustrated in their quest for information.

“Modern policing and the use of technology in investigating crime should be more transparent,” Samson said. “We are repeatedly told that communications data plays a significant role in modern policing, yet the report’s findings pose serious questions about the internal approval process, which differs from force to force.

“With police forces making over 730,000 requests for communications data in the past three years, political mutterings of diminishing access to our communications are clearly overstated. If greater access to our communications is to be granted, increased transparency and independent judicial approval should be introduced as standard.

“Until these safeguards exist, the public will have little confidence that the powers to access their communications are being used only when it is truly necessary and proportionate.”

The group’s report made five policy suggestions, including the introduction of judicial approval for all requests, a revised definition of what constitutes “communications data”, standardised procedures for making requests for all forces and telecoms companies, and making police forces produce “transparency reports” about how they make requests.

Communications data is defined by Big Brother Watch as “the who, where and when of any text, email, phone call or web search”.

A “designated person” – who must not be involved in the investigation and who must have a working knowledge of human rights legislation – is approved to access those details.

Currently, the police and security services generally require approval from a secretary of state when they want to intercept the contents of communications.

Sir Anthony May, the interception of communications commissioner, reported this year that the intelligence agencies and all other authorities collectively had permission to look at communications data more than half a million times in 2014, but he dismissed claims that there was any “significant institutional overuse of communications data powers”.

However, he did say: “A proportion of the applications did not adequately deal with the question of necessity or proportionality. There were some examples where the powers had been used improperly or unnecessarily.”

This included “breaches” in the way legally privileged material – private conversations between lawyers and their clients – had been handled by the various agencies.

Responding to the report, a Home Office spokesman said: “It is absolutely vital that our police and security services are able to obtain communications data in certain, limited circumstances, to protect the public and ensure national security.

“This information helps to disrupt terrorist plots, smash criminal networks and keep us safe, and it is a government priority to ensure our legislation is updated to deal with changing threats and evolving technologies.”

Ch Supt Stephen Graham, head of the West Midlands Police intelligence department, said: “Mobile phones now play a vital role in the investigation of crimes and help to locate missing people or in cases where we have threats to life.

“The application to obtain these details is subject to guidance and strict codes of practice. All police forces are regularly and rigorously inspected by an independent body on the way in which we use this tactic.

“The information gives details of when a call was made and which phone number was called. It may also give details of the location of the people making and receiving the call but would not include what they say or what data they pass on within a communication – including text, audio and video.

“People may think that it is an extension of police powers when all it is doing is giving us the ability to do what we already do.”