Legal threat to snooping laws

Every e-mail sent leaves a trace

Internet privacy campaigners say new legal advice could blow a hole in Home Office plans to snoop on people's online and telephone activity.

A draft European directive on keeping communications data, which could be used to strengthen the current voluntary code of practice in the UK, breeches human rights laws, says international law firm Covington & Burling.

Two test cases may be taken to the European courts by lobby group Privacy International to show UK attempts to widen internet surveillance would be unlawful.

But the Home Office says obtaining such information for safeguarding national security or preventing and detecting crime is legal.

Private life

The UK has a voluntary code of practice, introduced after the 11 September attacks under the Anti-Terrorism, Crime & Security Act 2001.

Under the code, communications providers are asked to keep hold of information demanded by authorities such as the police, Customs and Excise and drug enforcement agencies.

We are calling on all communications providers to support their customers' rights by ignoring the government's proposals" Simon Davies Privacy International

This "communications data" includes phone numbers and e-mail addresses contacted, web sites visited and locations of mobile phones.

Privacy International says the government wants a mandatory scheme obliging companies to keep personal data just in case it may be useful.

Covington & Burling says the European Convention on Human Rights (ECHR) "guarantees every individual the right to respect for his or her private life, subject only to narrow exceptions where government action is imperative".

"The Framework Decision and national laws similar to it would interfere with this right," it states.

Privacy International has urged providers not to comply with the UK's voluntary scheme.

Consultation

A Home Office spokesman told BBC News Online if service providers cannot work with the voluntary code, it will push for mandatory compliance.

He said the legal opinion is based on a leaked draft EU document and so would not comment on it.

The existing code, he added, followed consultation with the Information Commissioner and with the public.

But Simon Davies, of Privacy International, says the legal opinion puts the government on notice the direction it is going is unsafe.

"This is an important legal analysis," he told BBC News Online.

"It clearly exposes the government's intention not only to snoop unnecessarily on innocent people, but also to force unwilling companies to be complicit in an unprecedented and disproportionate surveillance regime.

"The government's plans are illegal."

Privacy International is now seeking two service providers in European countries where the mandatory retention is in place, to back in test cases through the courts.

The legal opinion and government's proposals will be debated at a public meeting at the London School of Economics on 22 October.