The government’s enthusiasm for powers to intercept communications could dash hopes of maintaining a seamless data protection regime after Brexit, according to a legal academic.
Proposals for continuity in data protection law following Brexit - essential to allow UK businesses to exchange data on customers and other individuals with the EU after March 2019 - were set out in a position paper published last week ahead of the latest round of Brexit negotiations. The paper pledges that the UK will implement legislation at least as stringent as the EU General Data Protection Regulation coming in to force next year. The ’unprecedented alignment between British and European law’ will be preserved following Brexit.
However, Dr Karen Mc Cullagh, a lecturer at the University of East Anglia’s school of law and a non-practising solicitor, said the paper overlooks measures in the Investigatory Powers Act 2016 that have been found to be unlawful by the Court of Justice of the European Union. ’Failure to revise the act so that UK laws are compatible with EU laws could result in member states refusing to transfer personal data to the UK. Impeded data flows would cause harm to the UK’s economy,’ Mc Cullagh said.
The act’s surveillance powers are the subject of several legal challenges. Civil liberties group Liberty received permission in June to bring a judicial review of the mass collection of individuals’ communications data and internet history.
Mc Cullagh said that failure to revise the act would lead to the UK being treated in a similar fashion to the US which had to introduce a fall-back corporate regime ’Privacy Shield’ when its surveillance laws were found to breach the privacy rights of EU citizens. Such measures are time consuming and expensive to administer, she warned.