UK to introduce new laws and a code of practice for police wanting to rifle through mobile phone messages

A new UK law will explicitly authorise the “voluntary” slurping of data from mobile phones of crime suspects and witnesses.

The Police, Crime, Sentencing and Courts Bill, which was introduced to Parliament this week, contains clauses that will allow police and others to extract data from mobile phones if the user “voluntarily” hands the device over.

Although it seems counterintuitive, the move comes after headlines in years gone by of police accessing excessive amounts of data from the phones of people who handed them over.

The most pointed criticism came from privacy pressure group Big Brother Watch, which insisted that victims of sexual assault were submitting to “digital strip searches” [PDF, 60 pages] as a result of cooperating with police investigators.

“Victims who do give blanket consent to these digital interrogations are afforded no protections. All the data taken from their devices, which can even include their social media accounts, can be kept by the police for up to 100 years,” said the pressure group in a report it published last year.

Clause 36 [PDF, 307 pages] of the bill says an “authorised person” can only extract information from somebody’s phone if it is handed over “voluntarily” and if that person agrees to have their phone’s contents digitally hoovered up.

The device can only be examined by police investigating or prosecuting crime, or if they are “helping to locate a missing person” or “protecting a child” from harm.

It appears that the proposed law is an effort to address campaigners by introducing some easy-to-meet procedural requirements. If an officer wants to slurp the digital contents of somebody’s phone and pry into them, they must first be satisfied that “there are no other means of obtaining the information sought by the authorised person which avoid that risk”.

A legally binding code of practice will also be introduced. Normal practice in the modern era is for the law to be vague and broad, and for so-called “codes of practice” to contain the actual controls, procedures and safeguards to be followed by investigators. Importantly, police are not as strictly bound by these codes of practice as they are by the actual law – the proposals in the new Bill say police must only “have regard” to the code of practice.

A Home Office spokeswoman said: “This Bill will bring clarity and consistency around the extraction of information and, for the first time, introduces safeguards to protect the privacy of victims and others in primary legislation.”

Silkie Carlo, director of Big Brother Watch (BBW) told The Register: “This is a missed opportunity to legislate for a proportionate, fair, rights-respecting digital evidence system. This is a high priority issue. Despite the legal wins against digital strip searches, we are now getting calls again from victims of rape and sexual assault who are told they can’t proceed with a police report unless they hand over years of mass data from their phones. The Home Office needs to address this urgently and seriously as offenders aren’t being brought to justice.”

BBW campaigned hard on what it called “digital strip searches” as part of a questionable response to a Crown Prosecution Service scandal where police and prosecutors had deliberately withheld evidence from courts showing that men accused of rape and sexual assault were likely to be innocent. Reforms intended to protect the innocent from miscarriages of justice became the focus of BBW’s campaigning, with the pressure group arguing the pendulum had tilted too far against victims of crime.

Campaign group Liberty said it hadn’t looked specifically at the mobile phone search parts of the Police, Crime, Sentencing and Courts Bill but instead pointed to other troubling parts of it, saying: “It’s a primary duty of Government to ensure that our communities are safe and free. But parts of this Bill will facilitate discrimination and undermine protest, which is the lifeblood of a healthy democracy.

“We should all be able to stand up for what we believe in, yet these proposals would give the police yet more powers to clamp down on protest.” ®

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