Analysis of Part III of the (draft) Electronics Communications Act 1999

Safeguards

Introduction

Clause 15 sets out a number of safeguards, which are welcome as far as they go.

Fundamental problems

The safeguards are set out in language that seems designed to avoid Judicial Review of their working. The phrasing should be consistently in objective terms rather than using language such as that of 15(2) "as he considers necessary".

The safeguards in 15(3) would be helpfully bolstered by arranging for the Data Protection Act to apply to databases of surrendered keys. The DPA does not override other statutes, but it is clear that the same principles should be applied to keys and indeed to any messages or other material that the law enforcement agencies may hold.

However, the deepest flaw in Clause 15 is that when people have violated the safeguards, such as they are, they seem likely to be immune from prosecution anyway. Examine 15(10) "A failure on the part of any person to comply with any provision of the code of practice ... shall not of itself render him liable to any criminal or civil proceedings" and ask yourself what the point of having the code of practice was in the first place ?

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