The home office has admitted to Ars that it has put on ice its plans for the hoovering up of Brits' Web history under the freshly passed Investigatory Powers law in light of a recent ruling from Europe's highest court—despite face-saving assurances that it had "contingencies" in place.
"The European Court of Justice handed down a judgment relating to the UK’s communications data regime in December. The matter must now be considered by the domestic courts and the consultation on the communications data code of practice has been deferred until this has taken place," a spokesperson confirmed to Ars on Friday.
A public consultation on the various draft codes of practice required to accompany the Investigatory Powers Act, colloquially known as the Snoopers' Charter, were published with a glaring omission: the blueprint for the home office's communications data code wasn't among the cache of documents released by Whitehall officials.
Draft codes released back in March last year when the legislation was being scrutinised in parliament have now been "superseded" by those published on Thursday as part of a six-week-long public consultation, the home office said.
However, it was initially silent on why the communications data code had altogether disappeared from view. The missing-in-action draft statutory code should provide detailed guidance to government agencies and ISPs and other comms providers (collectively referred to as CSPs) "on the procedures to be followed when acquisition of communications data takes place," under the provisions laid out in the Investigatory Powers Act 2016.
Ars understands that so-called Internet Connection Records are yet to be captured by CSPs as required under the new law. It seemed clear that the home office had mothballed implementation of those provisions, following the recent ruling from the Court of Justice of the European Union on the "general and indiscriminate" retention of citizens' communications data.
In late December, the CJEU found that the UK's controversial and sweeping powers on data retention were unlawful in all cases, with the exception of serious crime. The judgment came after then Tory backbencher and privacy campaigner David Davis—who is now prime minister Theresa May's Brexiter-in-chief—and Labour MP Tom Watson challenged the now-expired Data Retention and Investigatory Powers Act (DRIPA) that was rammed through parliament in 2014, in response to the EU's Data Retention Directive being ripped up.
The home office said at the time of the CJEU ruling that it would appeal against the decision, however, it recently told Ars that it was still waiting for an official date from the court.
Notably, the home office previously claimed that it had "contingency plans" in place as a work around to the judgment. It said in December: "Given the importance of communications data to preventing and detecting crime, we will ensure plans are in place so that the police and other public authorities can continue to acquire such data in a way that is consistent with EU law and our obligation to protect the public."
This story was updated after publication with the home office's full response to Ars.
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