Future-proofing the IPBill

Future-proofing the IPBill

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  Future-proofing the Investigatory PowersBill Graham Smith, Bird & Bird LLP @cyberleagle BILETA 11 April 2016
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  Future-proofing Page 2 © Bird& Bird LLP 2016 Legislation should stand the test of time in the face of rapid technological change
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  How? Page 3 © Bird& Bird LLP 2016
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  Broad general powers? Page4 © Bird & Bird LLP 2016
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  draft Communications DataBill Page 5 © Bird & Bird LLP 2016 “the wide anxiety raised by the breadth of clause 1” “Future-proofing and flexibility are at the heart of the language we have used in clause 1” Charles Farr “We do not think that Parliament should grant powers that are required only on the precautionary principle. There should be a current and pressing need for them.”
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  Page 6 © Bird& Bird LLP 2016 #IPBill Technical capability notices Data retention power DRIPA + IP address resolution + ICRs + …..
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  Technological neutrality Page 7 ©Bird & Bird LLP 2016
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  “motherhood and apple pie” (Reed,2007) Page 8 © Bird & Bird LLP 2016
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  But… Page 9 © Bird& Bird LLP 2016
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  Page 10 © Bird& Bird LLP 2016 RIPA
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  Page 11 © Bird& Bird LLP 2016 RIPA – comprehensible? 2003 "We have found RIPA to be a particularly puzzling statute" R v W (Court of Appeal) 2004 "longer and even more perplexing" than the "short but difficult" IOCA 1985. Lord Bingham, A-G’s Ref (No 5 of 2002) 2005 "this impenetrable statute … one of the most complex and unsatisfactory statutes currently in force." Prof. David Ormerod 2006 "a complex and difficult piece of legislation" Mummery LJ (President of the IPT) 2014 "RIPA 2000 is a difficult statute to understand" Sir Anthony May, IOCC Report 2013 2015 "RIPA, obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates" A Question of Trust
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  Page 12 © Bird& Bird LLP 2016 #IPBill objective "comprehensive and comprehensible" A Question of Trust
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  Page 13 © Bird& Bird LLP 2016
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  The Home Secretarytold us subsequently that the definitions … were intended to be Commons Science & Technology Committee Page 14 © Bird & Bird LLP 2016 “technology neutral and flexible in order that, should user behaviour and technology change, they will still apply”…
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  …as a result, “thedefinitions as they are formulated are necessarily abstract” Commons Science & Technology Committee Page 15 © Bird & Bird LLP 2016
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  The government, inseeking to future- proof the proposed legislation, has produced definitions of internet connection records and other terms which have led to significant confusion on the part of communications service providers and others. Commons Science & Technology Committee Page 16 © Bird & Bird LLP 2016
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  Page 17 © Bird& Bird LLP 2016
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  Page 18 © Bird& Bird LLP 2016
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  Page 19 © Bird& Bird LLP 2016 Content versus communication data
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  What are wetrying to future-proof? Page 20 © Bird & Bird LLP 2016
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  Powers v Intrusion/privacy balance Page 21 © Bird& Bird LLP 2016
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  Accidents of technology changethe privacy balance of technology-neutral powers Page 22 © Bird & Bird LLP 2016
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  How to future-proofthe privacy balance? ● Concrete, technology-specific drafting ● Sunsetted powers ● Frequent Parliamentary review ● Continued openness Data Protection Seminar 26 June 2014 Page 23 © Bird & Bird LLP 2016 Are Techlaw principles in the Ascendency? (Graham Smith) Intellectual Property Forum: journal of the Intellectual and Industrial Property Society of Australia and New Zealand - Issue 96 (Mar 2014)
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  Graham Smith [email protected] @cyberleagle Bird &Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses. Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number OC340318 and is authorised and regulated by the Solicitors Regulation Authority. Its registered office and principal place of business is at 15 Fetter Lane, London EC4A 1JP. A list of members of Bird & Bird LLP and of any non-members who are designated as partners, and of their respective professional qualifications, is open to inspection at that address. twobirds.com Thank you