The ethical case for ad-blocking

The ad-blocking wars have been hotting up over the last few months – triggered in part by Apple’s integration of ad-blocking into the new version of iOS, the operating system for iPhones and iPads. Some of the commentary, particularly from those associated with the advertising industry, has been more than a touch hyperbolic. Seasoned internet-watchers will be very familiar with ‘such-and-such will break the internet’ stories: the number of things that we’ve been told will break the internet over the years is huge. It’s as familiar as the ‘such-and-such technology/practice will kill music’ stories that have been around since the advent of recording – from home-taping to file-sharing, music has died almost as often as Sean Bean in the movies. And yet music still lives. And thrives. As does the internet, despite all the things that should have killed it.

The latest idea is that ad-blockers will break the internet. A particular piece in The Verge has been very widely read and shared – which puts forward the entirely believable suggestion that Apple has included ad-blocking in iOS as part of its global war with Google and Facebook. The overall premise is highly convincing – and of course Apple will do whatever it can to ‘win’ against Google and Facebook, and of course this is an opportunity to make some ground. Both Google and Facebook do make their money (or most of it) from advertising, so restricting, controlling or blocking advertising could potentially reduce that income. And Apple is a business, and will be looking for opportunities that give it a commercial advantage over its rivals. So, however, are Google and Facebook – despite their efforts to portray themselves as providers of free and wonderful services to all, guardians and supporters of freedom of expression and so fundamental to the infrastructure of the internet that we love that any challenges to them (and their business models) are challenges to the internet itself.

Publishers and the advertising industry – and in particular bodies that ‘represent’ the advertising industry – are equally aggressive, suggesting that ad-blocking is ‘unethical’, ‘hypocritical’ or worse. They have pursued ad-block software providers in the courts in Europe – consistently losing, most recently in Germany last week, where the makers of AdblockPlus made their fourth successful defence against a legal challenge. The media onslaught has been extensive, and supported by many commentators. And yet Adblock software seems to be increasingly popular and successful, both on computers and on mobile.

Why is this? Is it because those who use ad-blocking software are unethical? Because they come from the ‘something for nothing’ culture? Because they don’t understand the economics of the internet, and so are blindly going down a route that can lead only to disaster? I don’t think so. The reverse: I think that users of ad-blocking software are taking a positive route both ethically and economically. If anything, it is by extending the use of adblocking software that the future of the internet is being secured, not the reverse. The more people that use adblockers, the better the future for the internet.

Why do I think this? Well, first of all, I look at some of the positives and negatives of the use of adblockers.

In favour of ad-blocking:

  1. Makes your screen clearer and makes it easier to find and read the content (particularly important on mobile)
  2. Makes the experience cleaner, clearer and less annoying
  3. Speeds up your connection – stops those processor-hungry video ads in particular
  4. Saves you money if you pay for data (which many people do)
  5. Reduces your chances of picking up malware
  6. Protects (to some degree) your privacy by stopping trackers and profilers
  7. Protects (to some degree) your privacy by stopping others (e.g. government agencies) from piggybacking on the trackers and profilers
  8. It’s your freedom of choice to put whatever software you like on your own equipment.

Against ad-blocking

  1. Disrupts the current advertising model that supports much of the free content on the internet
  2. Stops you receiving relevant and attractive ads tailored to your profile and behaviour

This second anti-ad-blocking point is a stretch to say the least, though it is one that the advertising industry likes to push. I am far from convinced. That then leaves only the first point, that using adblockers disrupts the advertising model. And it does, no question about it. It has the potential to disrupt it hugely, which is why the advertising industry and the publishers that are supported by it are in such turmoil.

The points in favour of ad-blocking, however, include some very strong ones. Fundamentally, and this is the point that the advertising industry seems very reluctant to admit, the current model is broken. Very badly broken, from the point of view of the user – and particularly the mobile user. The first four points are critical: speed of connection for mobile is a fundamental issue, most people pay for data, and the screens of even the biggest phones (I have an iPhone 6 plus) are small enough that advertisements often make pages all but impossible to read. One of my favourite newspapers, The Independent, was completely unreadable on my phone until I installed an ad-blocker.

The remaining points are more ‘niche’ – I am a privacy advocate, so the privacy points really matter to me, but I realise that not all people care as much as I do, even if I believe they should – but the first four are strong enough that the points against ad-blocking would need to be very compelling, and ultimately, to me at least, they are not. Indeed, precisely the opposite.

The current situation is unsustainable

Let me return to the main point against ad-blockers. They disrupt the current advertising model that underpins much of the ‘free’ internet. Two key words: disrupt and current. Privacy-invasive, processor-intensive, screen-filling advertising is very much the current system, not something that has always existed nor something that need always exist. To assume that a current model is a ‘required’ model, is a necessary model and will (and must) last forever is ridiculous in the face of the most cursory examination of history. Things change all the time – and sometimes that change is necessary. For many people (as the uptake of adblockers reveals) the change in the current advertising model is necessary right now.

The need for disruption

The question then is how the situation can change – and part of that is the need for disruption. Without disruption, nothing will change. That is where adblockers come in, and why the use of them is a positive ethical step. If we want change, we have to act in order to make that change happen. Without adblockers, would the advertising industry be willing to change their model? The evidence points strongly against that. Advertisements have become more intrusive, more processor-hungry, more screen-filling over recent months and years, not less so. The past record of the advertising industry is not one to be celebrated. Here are just a few examples:

  • They have pretty consistently fought against attempts to make advertising less intrusive, and supported the worst excesses of advertisers. Phorm, the creepiest and most privacy invasive of all, which thought it was OK to monitor peoples entire internet activity without consent, and even engages in extensive secret trials without telling anyone, was supported directly by the industry bodies right until the end, when its model was ditched in the face of legal threats, EU action and being abandoned by its business partners.
  • The Do Not Track initiative – through which advertisers were intended to abide by user choices set out in their browsers – was so heavily undermined by the advertisers that it fell apart. Firstly they turned ‘do not track’ into ‘do not target’ – still tracking those who opted out, gathering data and profiling them, but not serving them with targeted ads. Then they refused to accept the idea that ‘not being tracked’ could be set as the default, saying that they would ignore that choice.
  • Google and others appear to have effectively side-stepped the do not track settings in the Safari browser, still tracking users though they had actively chosen not to be tracked: this is the backing to the Google vs Vidal-Hall case.

This is just a part of it – and does not even touch on the many other ethical issues connected to advertising. For advertisers to lecture others on ethics is more than a little hard to swallow.

How, then, can the advertising industry be persuaded to change its ways? The use of disruptive technology is one key tool. If the current dysfunctional situation is to be changed, and that would seem to many to be a good thing, then more use of that disruptive technology would seem to the necessary. Just as civil disobedience is sometimes critical to get social change, the same is true on the internet. It might be pushing it too far to say that we have a duty to use ad-blockers, but I don’t think it’s that much of a push.

There are some signs that some advertisers are taking the hint. The Electronic Frontier Foundation reported last week that ‘Adblockers and Innovative Ad Companies are Working Together to Build a More Privacy-Friendly Web’ – and I hope that this is a sign of better things to come. Would the ad companies have taken this kind of step without the uptake of adblockers? I think it highly unlikely.

What is clear to me, however, is that we need a new economic model to replace the current broken one. I do not know what that model will be, but I am confident that it will emerge. The internet will not ‘break’, any more than the music industry will collapse. Our disruption is part of how that new model will be created and developed. We should not be cowed by the advertising industry, particularly on ethical grounds.

Ethical policing of the internet – part 2

The first ‘proper’ meeting of the new National Police Chiefs’ Council’s  “Digital Ethics Panel” took place yesterday, at the College of Policing – I am one of the initial members of the panel. The meeting yesterday followed from an exploratory meeting back in March, a somewhat fiery affair that I wrote about at the time. It has taken some months for that meeting to turn into something real. In those months a great deal has happened – from the replacement of ACPO (the Association of Chief Police Officers) with the NPCC, three big reviews of surveillance (from the Intelligence and Security Committee (ISC), the Independent Reviewer of Terrorism Legislation (The Anderson Review) and the Royal United Services Institute (RUSI)) and last but by no means least the victory of the Conservatives in the General Election. New legislation is on its way – the impending Investigatory Powers Bill – and the limited messages that have come out about what that bill will contain have been far from reassuring.

In this climate, the idea that policing of the internet should have an ethical basis – or at least an ethical backstop of a kind – is one that I think should be taken seriously, and the NPCC should be applauded for the initiative, though it is still far from clear what it will actually amount to. Yesterday’s meeting was largely to thrash out the terms of reference of the panel. The people present included representatives from the police, the National Crime Agency, and the technology industry as well as academics from law and from moral philosophy. The depth and breadth of knowledge and experience was impressive – I felt very much at the junior end – and the discussion was wide ranging, reflecting the depth of the challenge that such an idea represents.

The idea, essentially, is to address critical issues of police activity on the net, both theoretically and in practice. Issues raised yesterday included the interaction between the police and the security and intelligence agencies, policing and monitoring social media, the process through which the new Investigatory Powers Bill will be scrutinised, finding ways to help MPs to be better informed, educating and raising the skill and knowledge levels of police officers, helping academics and others to learn more about the operational reality of policing on the net. The work would be intended to be practical as well as theoretical – potentially advising on the ethical issues arising in actual investigations as they happen, not just being a talking shop.

It is far too early to say whether this will actually work. There are many risks attached – including the possibility that the panel is used as a kind of fig leaf or a rubber stamp, to its existence being used to pretend to ethical principles that are not really adhered to – but the very fact that the NPCC thinks such an idea is worth exploring is a good sign. I did not get any sense yesterday that anyone involved was doing so with ulterior motives – but I know I can be naive at times.

Time will tell, but this does seem to fit with the developing movement towards more accountability and transparency, better oversight and broader understanding of the issues involved in surveillance. That was part of the essence of both the Anderson Review and the RUSI report – and the police at least seem to have got that message.

This blog post is very much my personal view of what happened – there will be more official communication in time, but one of the key terms of reference that was agreed upon was that the members of the panel would be able to communicate in their own way about what happens – subject to the Chatham House Rule, and obvious issues of confidentiality, particularly in relation to ongoing police work. I believe there’s promise here. I hope I’m right.

The Labour Purge…. and social media privacy.

The so-called ‘Labour Purge’ has many disturbing elements – from the motivations behind those who might ‘need’ to be purged to the motivations of those who want to purge them – but there is one aspect that appeared yesterday that seems to have been largely ignored: the attitude to people’s privacy. There was one particular statement, reported in the Guardian, that I found particularly disturbing:

Screen Shot 2015-08-25 at 20.15.25

There are many different elements to this statement that should bother us, but two linked point are particularly disturbing. Firstly, it suggests that the party has been scouring the internet to find social media profiles of people who have registered. Secondly, it seems to suggest that for people not to have clearly identifiable social media profiles is suspicious.

Privacy in public

The first idea, that it’s ‘OK’ to scour the net for social media profiles, then analyse them in detail is one that is all too common. ‘It’s in the public, so it’s fair game’ is the essential argument – but it relies on a fundamental misunderstanding of privacy, and of the way that people behave. Privacy isn’t two valued, with information either ‘public’ or ‘private’. It’s not even a spectrum, with some things more private, other things more public. It’s much more complex and nuanced than that. Some things we want to keep private from some people, and are happy to share with others. Some things we change our minds about. Time and context can change things. You might be happy for your friends to know something, but not your parents – or your kids. And vice versa. And it’s not about ‘hiding’ ‘bad’ stuff – again, it’s far more complex than that.

With social media this is particularly important. Though we should be wary of ‘real world’ analogies, in the context of politics it might be worth comparing the sort of conversations people have on Twitter, for example, with those we have in the pub. It’s a public place, and the things we say are ‘in public’, but when you chat with your mates around a table in a corner of the pub, do you expect that conversation to be recorded, and then pored over by your employers, the police, your relatives, your enemies, the local morality police etc? Do you think it would be OK for someone to have a microphone on the table next to you, and a camera hidden in their pint glass? Yes, this is ‘in public’, but in practice we do expect some degree of privacy – and if we didn’t, we wouldn’t have the kinds of important conversations that we do. If we expect to be watched and recorded, we’re more guarded – and less honest. We should encourage privacy, not ride roughshod over it, if we want honesty, freedom of speech, intelligent political debate and so on. Labour’s approach here is quite wrong.

Anonymity in social media

The second point is just as important. We should not expect people to have social media profiles – let alone identifiable social media profiles. What is more, this is particularly important for some of the people that Labour should care about and support the most. People may be ‘digitally excluded’, for a start – but they might also have extremely valid reasons to be pseudonymous on the internet. Vulnerable people, in particular, might need pseudonymity to protect them from those to whom they are vulnerable. Whistleblowers. People with abusive spouses. People with abusive or manipulative employers. Trade unionists, for example, might have that status used against them – there’s a reason that Trade Union membership is considered ‘sensitive personal data’ under the Data Protection Act. People might wish not to have their religion revealed to all and sundry. People might wish to separate their personal and professional lives for perfectly good reasons.

Respecting and supporting people

There is much more to say on this subject – but the underlying issue is the one that is most disturbing. What the Labour Party is doing may well breach the Data Protection Act – there is a discussion to be had here – but it is certainly at least verging on the creepy. It displays an attitude to people who wish to support them that is disappointing to say the least. It displays a distrust of – even a contempt for – people that should worry us.

Did they ask the people who applied to become supporters if it was OK for them to be scrutinised in this way? Did they inform them that they would be scrutinised in this way? Did they even think that it might be an issue? Did they check who would be doing the scrutiny, and what they would do with the data that they gathered? Have they compiled databases with the scrutiny information in – something that would certainly engage the Data Protection Act? Are there blacklists? How have they ensured that this data, these lists, are secure and not open to misuse? Have they even asked any of these questions?

The underlying attitude seems to be one of the classic and hideous misunderstanding of privacy: ‘if you’ve got nothing to hide, you’ve got nothing to fear’. If that’s still the attitude of the Labour Party, even after all the revelations of the last few years, they need to step back and think again.

Labour should embrace privacy

The Labour Party should embrace privacy, not ride roughshod over it. Privacy should protect the weak against the powerful. It should enable people to organise, to support themselves with and as a community. It should be precisely the sort of thing that Labour should support. They should remember the way that the powerful – whether governments, corporations, criminals or other powerful groups – invade privacy in order to cement and wield their power. They should remember how vulnerable people and vulnerable groups need privacy. They should always have known this – but now, particularly now, they should be aware of it, and change both their attitude and their actions.

Neither ‘moderates’ nor ‘ modernisers’…

One thing that has become stark in the Labour leadership election has been the division between factions – the trouble is, the descriptions used seem to be determined by those who have a distinct interest in the result. Jeremy Corbyn is of course described as ‘far left’ or ‘hard left’ – and though I disagree with both descriptions that isn’t really the point I want to make here. No, what I don’t agree with is the counter-description of those who seem to be lining up against Corbyn as ‘moderates’ or ‘modernisers’. Neither term is at all appropriate.

Anyone who has watched the increasing desperation by some within the anti-Corbyn campaign should have noticed the lack of moderation. The language used against him and his supporters has been vicious and personal. The tactics used – and even worse the tactics proposed – have been much less democratic than those used by his supporters. There have been stories of coups should he win, and most recently a call by John Mann MP for the whole contest to be called off. None of this is ‘moderate’ in any meaningful way. It’s the opposite: extremist, in a particular ‘centrist’ form. The level of control demanded – and part of John Mann’s call was based around an idea that the leadership election was ‘out of control’ – is the kind associated with the ‘hard left’ or ‘hard right’ than with anyone who pretends to be ‘moderate’. The narrowness of the ‘acceptable’ discussion is also far from moderate – it’s controlled and controlling. Moderates? Far from it.

The idea that the anti-Corbyn campaign is full of ‘modernisers’ is almost as misleading: in practice, many of them want the opposite of modernisation. What they want is a return to something that was modern, but has now become part of an almost mythical past. Labour circa 1997 is seen as the ideal – and this isn’t ‘modern’ any more. It’s harking back to the past, with nostalgia just as unrealistic as UKIP’s nostalgia for a mythical 50s. A true ‘moderniser’ is open to something new, ready to abandon their presumptions and prejudices, not to try to lock into place something that they liked in their youth. I liked Labour 1997 – but in 1997. It’s not 1997 anymore – and a real moderniser wouldn’t want it to be. They would want something really new – and not to go back to their version of the Blair model. That time has passed.

So no, the ‘anti-Corbyn’ campaign isn’t populated by moderates and modernisers so much as with extremists (of the centre) and nostalgia-driven conservatives (with a small ‘C’). A moderate would want debate, and show respect. A moderniser would be open to different options and to having their assumptions (including economic ones) challenged. Right now, those driving the campaign against Corbyn do neither.

The Labour Leadership Saga…

When Labour lost the General Election

They knew they needed new direction

Without a pause for much reflection

“A new leader” they cried!


The first to rise was the man called Chuka

His suits so sharp, credentials pukka

But when tabloid lips began to pucker

He ran away to hide.


Tristram next began to expound

His vision, with his vowels round

But support for him could not be found:

He fell, and wept inside


Just three remained: let battle commence

With Yvette and Andy on the fence

And Liz, who said her views made sense

For the members’ votes they vied


‘I’m Northern, me,” Scouse Andy said

Bright Yvette “I’m not quite so red”

Tough Liz cried “They’re both just like Ed”

“Who the voters can’t abide”


Said Liz, “I’m really not a Tory”

“Listen, you lot, to my story”

“Don’t vote for me? There’ll be no glory”

“Our future will be fried”


But from the left a wailing came

Those three, they cried, are all the same

They treat this thing as just a game

Let’s not give up our pride!


So Jez rose out from far left field

To this despair, he could not yield

With sword of red, and trusty shield

The media he defied


“I stand for people” Jez cried out

“For the poor and the lost, for those without”

“For socialism, I will shout”

“I’ll swim against the tide”


The old-new Labour lot just laughed

The very idea was completely daft

But a cunning plan they thought they’d craft

And let him come inside


But to their shock, his old left style

Did not make members run a mile

Instead it made them raise a smile

And fight instead of hide


His rivals could not deal with Jez

So went to their friends in the press

And said “it’s really quite a mess”

“Don’t worry,” their friends sighed


“It’s Tories playing silly games”

“They only want to fan the flames”

The antis cried, and called Jez names

And rocks at him they shied


They said ‘he’s just a dinosaur’

But others said ‘Jez tell us more’

At hustings he just took the floor

The others seemed to hide


The more he spoke, the more they shook

He rarely let them off the hook

He read them like an old, old book

No secrets held inside


What could the anti-Jez lot do?

The game had turned, that much they knew

They even tried to plan a coup!

The others simply sighed


Nothing seemed to work at all

Their ratings seemed to fall and fall

No matter who they tried to call

No answers could they find


Could Labour members be so mad?

Surely Jez must be a fad?

Things can’t really be so bad

The odds he has defied


The Blairites soon began to panic

Their media-writing was almost manic

But they misunderstood the whole dynamic

They couldn’t turn the tide


“He’s old,” they cried, “he’s got a beard”

“He’s damaging”, they sneered and sneered

“He’s just the sort of man we feared”

Was what they felt inside.


They called on Blair, their old grandmaster

But this time he was a disaster

They couldn’t have made Jez rise faster

No matter what they tried.


What could they do? They cursed and cursed

The Corbyn balloon must be burst

Before things could get any worse

And he got in his stride


“The game” they said, “it must be stopped”

“The whole contest it must be dropped”

“A new idea we must adopt”

“New rules must be applied”


“This time” they said, “we’ll make quite sure”

“The likes of Jez are shown the door”

“And just the right people take the floor”

“Let that be our guide”


Will they win? Just time will tell

The whole thing now begins to smell

A stitch up we might just foretell

But can they stop the tide?


…to be continued…





A ten point plan for the anti-Corbyn campaign.

  1. Stop calling Corbyn supporters stupid
  2. Send Tony Blair to Kazakhstan and don’t let him leave there until after the election
  3. Stop commissioning or writing editorials about how bad it would be if Corbyn wins the Labour leadership election
  4. Stop calling Corbyn supporters stupid
  5. Remember that the people who will decide the Labour leadership election are the Labour members and supporters, not the ‘general public’. You have to convince Labour members and supporters to choose a different candidate, not your conception of the general public, Daily Mail readers, ‘Middle England’, people who voted Tory or UKIP etc. Convincing them comes later, not in the Labour leadership election.
  6. Have a little think about why people support Corbyn, and if your answer is ‘they must be stupid’ think again.
  7. Stop calling Corbyn supporters stupid
  8. Convince one of the other candidates to have an idea that might be attractive to Corbyn supporters
  9. Try to come up with an idea that wasn’t in the Tory manifesto
  10. Stop calling Corbyn supporters stupid.

Simple, really….

DRIPA overturned…. an explanation and comment

The ruling in the High Court that overturned the Data Retention and Investigatory Powers Act (DRIP) may well turn out to be a significant one. At the time that it was passed, academics and privacy advocates were deeply disturbed not just by the bill but by the way it was passed – I blogged a number of times on the subject, including an Open Letter from myself and other academics, and a comment on the shabby process through which it was passed.

Our concerns appear to have been well founded – hence the overturning of the law – but they are part of a much bigger process through which the whole of our surveillance system is being held up to scrutiny and found wanting. The Anderson Report, the RUSI report, the rulings of the Investigatory Powers Tribunal and now this High Court ruling show a growing feeling that the current situation is unacceptable. It is no longer sufficient for the authorities to say ‘trust us’ with surveillance. Indeed, the more that comes out, the less they appear deserving of that trust. The passing of DRIPA, without proper scrutiny, without proper debate, and ignoring the criticisms of experts, showed contempt for people and for the nation – it is a very good thing that it has now been overturned. What happens next is another matter – but one that we should watch very carefully indeed.

Below is a post from the LSE Media Policy Blog, by Lorna Woods, explaining today’s ruling, reposted with permission.

Explaining the ruling that overturned the UK’s Data Retention & Investigatory Powers Act

The British High Court just invalidated the UK’s bill on retention and investigation of communications data that was enacted in 2014 in the wake of the overturning of the EU Data Retention Directive by the European court. Lorna Woods of the University of Essex explains the ruling and its implications. 

In a very rare outcome, the English High Court has declared that the Data Retention and Investigatory Powers Act (DRIPA) is inconsistent with European Union law and therefore is “disapplied”, although the Court suspended the effect of its order until after 31 March 2016. Liberty to appeal was granted.

DRIPA was rushed through Parliament last summer, much to the consternation of many, as this judicial review action evidences. DRIPA had been enacted in the wake of the Digital Rights Ireland decision of the European Court of Justice invalidating the Data Retention Directive (2002/58/EC), and the recognition that some of the activities of the police and security forces in this country in terms of surveillance and data access in any event had at best very dubious legal authority. DRIPA went through on the basis, that rather than involving new principles, it constituted mere clarification of the law. It was on the basis of EU law following Digital Rights Ireland that this action was brought.

The Judgment

Argument in court concerned what Digital Ireland in fact said, and the impact a ruling on a directive should have on national legislation designed to implement it. The High Court argued that, although Digital Rights Ireland related to the Directive and not national legislation, the ECJ was questioning whether the EU legislature had, by instituting its data retention rules, overstepped the principle of proportionality in balancing the rights to privacy and data protection in the EU’s Charter on Fundamental Rights against law enforcement and national security objectives (see Articles 7, 8  on rights & Article 52(1) on limitations). The Court took the meaning of the case to be that:

‘the ratio of Digital Rights Ireland is that legislation establishing a general retention regime for communications data infringes rights under Articles 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights’. [para 89]

In terms of the criteria by which any domestic legislation should be judged, the English High Court held that “[w]e do not accept that the [ECJ’s ruling in Digital Rights Ireland] is authority for nothing more than the verdict [ie it only speaks to the validity of the directive], any more than we interpret the judgment as meaning that each criticism or concern which the Court expressed involves a fatal flaw in the legislation”. [para 90]. The English Court then came up with a three-part structure summarising the requirements of any such legislative scheme for it to be acceptable under EU law:

  • Derogation and limitations in relation to the protection of personal data must apply only is as far is strictly necessary, so any legislation must set down clear, precise rules regarding scope of derogation and safeguarding rights against risk of abuse;
  • Legislation establishing a general scheme of retention must expressly restrict the purposes for which the scheme is used to precisely defined serious crimes;
  • Prior review by a court is required [para 91]

The Court decided not to make a reference to the ECJ on the question, although similar questions are pending from a Swedish Court before the ECJon similar domestic legislation. The requirements in derived from Digital Rights Ireland were not satisfied by DRIPA.

Next Steps

Although the Court ordered disapplication, which means the law will not be enforced, it suspended the effect of that order to allow the Government time to re-legislate. It seems that there is a growing consensus that some change to allow proper safeguards is required – as can been seen in the Anderson Report and in the RUSI Report. It is to be hoped that this time, the Government gives adequate notice to allow proper scrutiny of the proposed measures: a lack of scrutiny has been an ongoing concern about the passage of DRIPA and other measures in this area.

This case will no doubt give rise to a number of legal questions – and leave to appeal has been granted – but two immediate questions occur. The first relates to the scope of the disapplication: the Secretary of State for the Home Department who was defending DRIPA in this case raised at the last minute whether national security fell within the scope of EU law. If it does not, the arguments raised here would not apply to it. The Court did not deal with this argument as it was raised at the least minute. Secondly, if the High Court accepts that DRIPA is incompatible with EU law, as it has just argued, then how does it have the power to suspend disapplication until March next year? According to the ECJ, EU law is supreme and needs no intervention from the domestic legal systems to make it so. From that perspective, today’s disapplication could not be delayed. The Government now needs to prioritise re-legislating on the retention and investigation of communications data.

This article gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics and Political Science.



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