back to article Why the UK is unlikely to get an adequacy determination post Brexit

This article adds two reasons to why I think a post-Brexit UK is very unlikely to offer an adequate level of protection in terms of the General Data Protection Regulation (GDPR). One reason relates to recent comments made by Prime Minister Theresa May about human rights. The other relates to the non-compliance of the national …

  1. Dr. Mouse Silver badge

    Really?

    Wow, the security services are ignoring the law and doing whatever the hell they want? I'm shocked!

  2. Doctor Syntax Silver badge

    It's one thing to argue that May's policies would make compliance impossible. It's another to assume that she (or someone else) won't have to change them. The economic realities of not being able to comply (not to mention the impact on the Good Friday agreement of abandoning the ECHR) is going to make her stance increasingly impractical.

    We would, in future, be well advised to avoid promoting Home Secs to PM; the experience seems to warp their judgement.

    1. Justicesays

      I'm not sure where the "We" is in the appointment process.

      "We would, in future, be well advised to avoid promoting Home Secs to PM; the experience seems to warp their judgement."

      As the appointment process consisted of several rounds of political backstabbing and back room deals, and not even the tiny proportion of the country that are official members of the conservative party got to pick between prospective candidates, I'm not sure where the "We" come into it.

      1. Doctor Syntax Silver badge

        Re: I'm not sure where the "We" is in the appointment process.

        We as a nation. Wasn't that what Brexit is supposed to be about?

        1. Pascal Monett Silver badge

          That's what you were meant to think.

        2. John Smith 19 Gold badge
          Gimp

          "We as a nation. Wasn't that what Brexit is supposed to be about?"

          Oh you mean (it's just) Boris banging on about "Taking back control" ?

          Seems he mean the Home Office taking back control (of bulk data sets).

          Just to reiterate the UK Supreme Court view in a nutshell.

          "Bulk storage of personal data is just fine. It's only if it's used in bulk that there might be an issue with Article 8."

          No one else in Europe agrees. But then some of those countries (both North and South of the Iron Curtain) lived through what happens when the state is allowed uncontrolled bulk data collection.

    2. Jess

      Re: It's another to assume that she won't have to change them.

      But Brexit means Brexit.

      1. Anonymous Coward
        Anonymous Coward

        Re: It's another to assume that she won't have to change them.

        and lies mean lies. Sorry, I mean "political promises mean political promises".

  3. mark 120

    While they may not know that this applies to them, one would expect that they had something in place to review legislation and determine whether they are or are not in scope of it, on a regular basis.

    I think that leaves two possibilities:

    1) They are incompetent, and genuinely have no idea what regulations apply to them

    2) They know which regulations apply to them, but wilfully ignore them.

    Which is it?

    1. Dan 55 Silver badge

      Didn't they take a very long time to dig up something in the 1984 Telecoms Act which retrospectively lets them off the hook (sorry, pun not intended), but they were doing it anyway?

    2. Warm Braw Silver badge

      Which is it?

      History suggests it is in fact (3):

      Make the regulations sufficiently confusing and vague that challenging them is exceptionally hard, especially when evidence is unobtainable; in the face of a successful challenge, change the regulations to ensure all pending challenges have to start again.

  4. Dan 55 Silver badge

    "(b) in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands"

    Perhaps that should be removed or rephrased to say that they CANNOT collect bulk datasets in the interests of the economic well-being of the United Kingdom, otherwise that'll be the death of selling UK-based software/cloud services abroad.

    But given her latest non-interview it seems Cruela De Vil is not bothered about economic interests, only regressing back to the 16th century, just before Crop Rotation was discovered because it's also mentioned in an EU directive and that's a problem.

    1. John Brown (no body) Silver badge

      "Perhaps that should be removed or rephrased to say that they CANNOT collect bulk datasets in the interests of the economic well-being of the United Kingdom, otherwise that'll be the death of selling UK-based software/cloud services abroad."

      And yet it doesn't seem to have harmed the US selling of cloud services, collection of EU data or even government submission of EU data to or by US companies.

  5. W Donelson

    Theresa May's Tory Brexit plans, direct from Looney Tunes!

    - "How to jump off a cliff without falling."

    1. Anonymous Coward
      Anonymous Coward

      That doesn't avoid the anvil that follows.

  6. Jove Bronze badge

    Who cares?

    It is only of interest to a minority, and in practical terms it will make the UK safer than the those countries that choose to remain subject to EU law. Of course; don't expect EU law to remain so liberal.

    1. Doctor Syntax Silver badge

      Re: Who cares?

      You forgot the joke alert icon.

    2. James 51
      Big Brother

      Re: Who cares?

      The example I always give is the murder of Stephen Lawrence. His family started to embarrass the Met because of the lack of progress in the investigation. Their response was to send an undercover officer not to further the murder investigation but to discredit his family. http://www.bbc.co.uk/news/uk-26466867 With things like mass surveillance in place it will be much easier to dig up something embarrassing while perfectly legal or put things out of context to achieve the same aim. This is all about power protecting itself at the expense of ordinary people.

    3. Anonymous Blowhard

      Re: Who cares?

      Oh dear, since when is the ECHR the EU? But a lot of the pro-Brexit arguments have been a conflation of various "taking back control" type misinformation, with rhetoric that sounds like it came straight from the script of "V for Vendetta".

      When your government starts saying "we know best, and shouldn't be judged by our peers" then it really is time to start worrying...

      1. James 51
        FAIL

        Re: Who cares?

        Being part of the ECHR is a requirement for EU membership. May has in the past said the best reason to get out of the EU was so that we could then get out of the ECHR (although perhaps displaying her ignorance by claiming we could leave ECHR and remain in EU):

        http://www.bbc.co.uk/news/uk-politics-21726612

        If the STAZI existed they would look on in envy with what is being done now. We must take away your rights in order to project them is as stupid an arugement as it sounds.

        1. John Brown (no body) Silver badge

          Re: Who cares?

          "Being part of the ECHR is a requirement for EU membership."

          But being part of the ECHR does not require a country to be in the EU. And the Brexit vote was specifically about the EU, not any of the other European institutions we are members of, most (all?) of which don't require EU membership as a precondition.

          1. Loyal Commenter Silver badge

            Re: Who cares?

            But being part of the ECHR does not require a country to be in the EU. And the Brexit vote was specifically about the EU, not any of the other European institutions we are members of, most (all?) of which don't require EU membership as a precondition.

            This is true, but it is her stated intention to make it a manifesto commitment to withdraw from the ECHR. Personally, this scares me. A lot.

            1. John Smith 19 Gold badge
              Gimp

              her stated intention to make it a manifesto commitment to withdraw from the ECHR.

              Personally, this scares me. A lot.

              It should.

              A lot.

            2. Paul Shirley

              Re: Who cares?

              "it is her stated intention to make it a manifesto commitment to withdraw from the ECHR"

              The question this raises is exactly when did she realise her dreams were incompatible with supporting Remain. From her invisibility throughout the referendum, I'd guess a few days into the campaign someone smacked her with a clue stick.

              1. Doctor Syntax Silver badge

                Re: Who cares?

                "when did she realise her dreams were incompatible with supporting Remain....I'd guess a few days into the campaign someone smacked her with a clue stick."

                I doubt it was as late as that nor that anyone had to alert her to it. I think she was a closet leaver all along but expected remain to win so nominally went along with that.

            3. John Brown (no body) Silver badge

              Re: Who cares?

              "it is her stated intention to make it a manifesto commitment to withdraw from the ECHR. Personally, this scares me. A lot."

              Me too! And when she tries it on, I hope there are proper challenges to her right to unilaterally attempt it the way she tried to ride roughshod over Parliament with respect to invoking Article 50.

      2. codejunky Silver badge

        Re: Who cares?

        @ Anonymous Blowhard

        "But a lot of the pro-Brexit arguments have been a conflation of various "taking back control" type misinformation, with rhetoric that sounds like it came straight from the script of "V for Vendetta"."

        Unfortunately this isnt a brexit problem but a politics problem. Look at the severe misinformation and even severe rigging in the pro-EU campaign and the continued efforts to dictate to the people. This isnt a leaver/remainer problem this is an issue that has been continuing for some time. Think back to anti-terrorism laws being misused to track dog walkers. Even the spying on civilians in this country vs the same in Germany by the NSA with permission from Germany (until they got caught listening to Merkel). Pre all this brexit stuff it would have continued to be blamed on the war on terror. But now brexit is a great excuse for those not wanting to tell the truth and those looking for something to blame brexit for (since the apocalypse didnt happen).

        "When your government starts saying "we know best, and shouldn't be judged by our peers" then it really is time to start worrying..."

        Well said.

        1. Doctor Syntax Silver badge

          Re: Who cares?

          "Unfortunately this isnt a brexit problem but a politics problem."

          The two are not independent. Brexit is a necessity for May's escaping international scrutiny on human rights by reneging on the ECHR. She is clearly prepared to chuck substantial swathes of the UK economy under the bus in order to achieve this dubious political end. The most charitable explanation I can think if is extremely blinkered vision.

          1. codejunky Silver badge

            Re: Who cares?

            @ Doctor Syntax

            "ECHR. She is clearly prepared to chuck substantial swathes of the UK economy under the bus in order to achieve this dubious political end"

            That assessment is very questionable since it could easily be economically good news but the human rights bit does bother me a bit too. In my view it is the trade off that people voted tories for the referendum instead of UKIP. All the cries of no plan are for electing Cameron who tried his best to rig the outcome.

      3. Lotaresco Silver badge

        Re: Who cares?

        "with rhetoric that sounds like it came straight from the script of "V for Vendetta"."

        Yes, from the wrong side though. I fully expect satire to become an arrestable offence and possession of the Quran to become a capital offence the way things are going.

        "Adam Susan is the leader of the Norsefire party, and the ruler of the dictatorship that holds Britain in an iron grip. A firm adherent of pure fascism, he values order above all else and sees civil liberties as unneeded luxuries which are ultimately threats to a secure society. He states early in the novel that he believes in "the destiny of the Nordic race", and subsequently despises anyone who is not white, Christian, male and heterosexual."

        Insert the name of the fascist du jour and whichever political party is currently most barkingly pro-Brexit at the moment.

    4. Anonymous Coward
      Anonymous Coward

      Re: Who cares?

      It's of significant interest to anyone who wants to run a computing operation in the UK and hold data on EU citizens - as in, anyone who wants to sell things to Europe.

    5. Alfred

      Re: Who cares?

      "it will make the UK safer"

      Safer for whom? It will make the UK more dangerous for everyone whose details are collected and retained.

    6. H in The Hague Silver badge

      Re: Who cares?

      "It is only of interest to a minority"

      But tomorrow Jove, you or your family could be members of the minority that incurs the wrath of the government of the day.

    7. edge_e
      Unhappy

      Re: Who cares?

      When the Nazis came for the communists,

      I remained silent;

      I was not a communist.

      When they locked up the social democrats,

      I remained silent;

      I was not a social democrat.

      When they came for the trade unionists,

      I did not speak out;

      I was not a trade unionist.

      When they came for the Jews,

      I remained silent;

      I wasn't a Jew.

      When they came for me,

      there was no one left to speak out.

    8. Anonymous Coward
      Anonymous Coward

      Re: Who cares?

      Apparently quite a few of the Reg readers who visit the forums care, which is interesting as the vast bulk of the UK population not only don't care they don't know, and if they did they still wouldn't care. They do however know and care what Kim Kardashian had for breakfast. As such there isn't much point getting overly concerned about it.

  7. Lee D Silver badge

    Theresa May, Spy Minister, has managed to keep a low profile since in power. This is actually working in her favour as nothing controversial has happened but we can all see what's coming.

    I'm just not sure how/why "human rights" is something you would want to opt out of, or who instructed her to do that.

    1. Missing Semicolon
      WTF?

      Hard cases

      Unfortunately, "Human Rights Law" has many consequences. One is that we actually have the right (currently) not to be spied upon without good reason.

      The other, that really grinds everybody's gears is the "right to family/life/liberty/whotnot" which is supposed to be a modern version of Habeus Corpus (You have the right not to be imprisoned by the State without trial). This has lead to a huge industry of well-meaning or money-grubbing lawyers extending the definitions so that we don't even get to deport foreign criminals if they own, say a cat.

      Most countries have laws that say if you are not a citizen, if you commit a serious crime, you're out. We have them too, but we can't apply them.

      1. BillyIdol
        Joke

        Re: Hard cases

        The cat thing was -- and I'm not making this up -- disproved a long time ago https://www.theguardian.com/law/2011/oct/04/theresa-may-wrong-cat-deportation

        The EU might need reformed, but printing myths isn't going to help.

        1. Anonymous Coward
          Anonymous Coward

          Re: Hard cases

          "The EU might need reformed, but printing myths isn't going to help."

          i think if you look back, you'll fnd most of Fleet Street disagreed and printed whatever myths they felt like

        2. Missing Semicolon

          Re: Hard cases

          Hmm.

          From the DT:

          "As part of the application and as part of the appeal, the couple gave detailed statements of the life they had built together in the UK to show the genuine nature and duration of their relationship," he said.

          "One detail provided, among many, was that they had owned a cat together for some time.

          "The appeal was successful and when giving the reasons for the success the judge did comment on the couple's cat. It was taken into account as part of the couple's life together.

          This was a quote from the first-tier judge. The Upper Tribunal did not reference said cat, using other grounds. Whether out of embarrassment or legal correctness is not clear.

          Something keeps Matrix Chambers very busy.....

      2. Anonymous Blowhard

        Re: Hard cases

        So your argument is that 70 million people should give up their human rights so that the UK government can deport a few thousand criminals?

        1. Anonymous Coward
          Anonymous Coward

          Re: Hard cases

          sounds like that's the argument made, yes. Wonder what would happen - in that world view - to Scottish people who commit crimes in England if independence referendum version 2 goes that way?

        2. Tom 7 Silver badge

          Re: Hard cases

          The reason why we have trouble deporting criminals is due to the incompetent Home Secretary we had at the time who couldn't even get dates right on documents. Some oaf call May IIRC.

          And ISTR other countries went to the EU court and asked if they could deport criminals and the court said 'yeh sure'. Its only in the UK we can make something simple into someone else's problem to such a level and not invent intergalactic travel. Don't expect that to improve either way.

        3. Anonymous Coward
          Anonymous Coward

          Re: Hard cases

          In my experience it's distressing how many of the 70 million are perfectly happy with doing just that.

      3. David Nash

        Re: Hard cases

        It strikes me that the right to a family life might come in very handy for those EU citizens married to Brits, and who have lived here with their British family for the likes of 20 years or more, and who have the audacity to want to stay after Brexit.

        1. cambsukguy

          Re: Hard cases

          I think that, if it is five years or more, you get the right to stay permanently anyway.

          I worry more about my girlfriend staying when it might be close to the five years at Brexit, and whether they use weasel rules like "You went Home for a month, that counts as leaving and returning".

          1. Anonymous Coward
            Anonymous Coward

            Re: Hard cases

            "I think that, if it is five years or more, you get the right to stay permanently anyway."

            there have been at least two cases reported in the press of EU people applying to stay as a precaution. In spite of living here for many, many years they have been told they don't have the "right" documentary material for the process.

            https://www.theguardian.com/uk-news/2016/dec/29/home-office-reform-permanent-residency-application-process-eu-nationals

            https://www.theguardian.com/uk-news/2016/dec/29/home-office-reform-permanent-residency-application-process-eu-nationals

      4. phuzz Silver badge
        Facepalm

        Re: Hard cases

        Actually, last year a certain home secretary insisted that "Being in the EU gives us access to criminal records sharing and prisoner transfer agreements which help us better identify people with criminal records and, allow us to send foreign criminals back to their home countries to serve their sentences" (source, last paragraph here). So according to that home sec, (who it turns out, is now our PM), it's going to be harder to deport people when we leave the EU.

        Oh well!

  8. lglethal Silver badge
    WTF?

    How on Earth did the Supremes come up with that interpretation???

    My lay reading of that judgement is that the Supremes said, its ok to collect the data, but you cant look at it!

    But since there is no point in collecting the data in the first place if you're not allowed to look at it, why would the data need to be collected? So effectively, the judges were daring the intelligence agencies to collect and use the data, and if they got caught using it, the judges could simply deny they ever gave them premission to look at it.

    Gobsmacking really. Thank diety for the ECHR!

    1. davidak

      Re: How on Earth did the Supremes come up with that interpretation???

      I will paraphrase Sir Kier "Human Rights Lawyer" Starmer on this one. If we collect evidence on everyone when we don't know who the suspect is, when we have a suspect we will have evidence on them. Yes he did say this (precise words may differ marginally) in one of the IP Act debates. Yes, the so called human rights lawyer thinks this is a good thing.

      1. Anonymous Coward
        Anonymous Coward

        Re: How on Earth did the Supremes come up with that interpretation???

        The decision of the ECHR judges may have a basis in Europe's practical experience of how benignly collected data on everyone can be used by a future government for malign purposes.

        The Snooper's Charter browser data collections will be of great use to a future government that wishes to round up all potential political dissenters - just like Turkey is doing. May for President to rule by decree - that's the power she seems to desire.

        1. John Smith 19 Gold badge
          Unhappy

          "The.. browser data collections will be of great use to a future government t"

          Of whatever stripe that government is.

          Hard right

          Hard left

          Doesn't matter.

          The bureaucrats have thoughtfully collected a dataset for any politician to use.

          The only safe option is not to collect this data to begin with.

    2. Lotaresco Silver badge

      Re: How on Earth did the Supremes come up with that interpretation???

      I think you will find that the Supremes came up with:

      "But all you do is treat me bad, Break my heart and leave me sad"

      Which seems to perfectly fit the current state of politics.

      1. Loyal Commenter Silver badge

        Re: How on Earth did the Supremes come up with that interpretation???

        Instead of breaking up

        Let's start some kissing and making up

  9. Forget It
    Big Brother

    I know we are talking about privacy issues here

    but who is the "I" referred to in this article?

    Credit Kudos etc to the "I" - the author!

    I don't find the name of the author

    anywhere here

    nor on their original blog.

    1. Anonymous Coward
      Anonymous Coward

      If their arguments hold water - then who wrote it is irrelevant. Sometimes it is better to put a distance between an argument and an author's reputation to avoid biassing the reader. Any counter-argument is in a factual refutation.

    2. ok_then

      Pretty sure it's Chris Pounder - http://www.amberhawk.com/uploads/Brochures/CV%20Chris%20Pounder.pdf

  10. DavCrav Silver badge

    If the UK doesn't, the US won't

    The author writes some stuff, but the reality is that the law itself has nothing to do with it when it comes to things this important. The US will likely get adequacy, because it's politically difficult not to. (Although now Trump is in, less likely than before.) If the US gets adequacy it will be difficult for the EU to argue that the UK is not also adequate without tying themselves up in knots.

    So three options:

    1) neither US nor UK gets adequacy;

    2) both do;

    3) EC punishes UK for Brexit.

    1. Doctor Syntax Silver badge

      Re: If the UK doesn't, the US won't

      4) 3 + repeated attempts to grant US adequacy alternating with trips to the courts to thwart them.

      Would it be too much to hope that 3 brings about a final realisation that Brexit really wasn't a good idea with the electorate punishing those politicians who supported it.

      NB there's no requirement for an electorate to remain consistent, especially when it finally realises which side of its bread was buttered.

  11. Pascal Monett Silver badge

    Divided we fall

    Great idea there, let's all disregard all treaties and declarations and make up our own little rules and regulations when it comes to Human Rights.

    The US has already decided to ignore Human Rights when it comes to people it doesn't like. Now the UK is apparently deciding it wants its own version too.

    Congratulations, Bin Laden is positively ROLFing from the depths of Davy Jones locker. I'm seriously starting to wonder if Bin Laden wasn't a CIA operation from the beginning right up to his "death".

    No freedom nor security if you give up a bit of either ? Looks like we'll all end up with neither whether we choose to or not.

    1. Lotaresco Silver badge

      Re: Divided we fall

      "Bin Laden is positively ROLFing "

      That's a new accusation about Bin Laden. I can't recall him being mentioned during Operation Yewtree.

  12. Rob D.
    Stop

    Justice versus reality

    The lay person perspective on retention of data must be that the UK Supreme Court ruling in S. v. Marper is bonkers (there's probably a technical legal term for that).

    If retention without disclosure does not engage Article 8 and while disclosure could engage A8 but isn't part of the appeal then rule that retention is OK. Everything acquired lawfully can be retained even though retention in the real world inevitably leads to disclosure either by plan or accident or malfeasance (or retention has no purpose).

    Another absurdity is that anyone not prosecuted (not charged, prosecution dropped, found innocent, etc) is legally considered innocent. That then gives two classes of 'Innocent' people in the UK - those who have their DNA and fingerprints on record and could be subject to an investigation (we know we shouldn't but something important came up so can we just check this DNA against everyone we have on record), and those who do not.

    Recognising that if you've done nothing wrong then you've nothing to fear, wouldn't it therefore meet with universal approval and save the police/security services a whole lot of time to build a proper database. UK plc could get DNA swabs at birth along with the vitamin K injection, at the border for anyone entering the country, and on demand in the street just in case you'd been missed. Nothing would actually be disclosed to anyone, just retained.

    1. kyndair
      Unhappy

      Re: Justice versus reality

      and on top of al that the fun thing this dna fingerprinting is very far from perfect. Your 'fingerprint' will match lots of other people in the country so if you were once picked by an overzealous plod and had dna taken but nothing ever proceeded because his sergeant told him to grow-up and stop wasting time then some Muppet commits murder/rape/terror elsewhere and they match you well tough luck for you as our system now operates on guilty unless you can prove yourself innocent.

  13. Anonymous Coward
    Anonymous Coward

    Well at least El Reg will have https to help our privacy.

    See top of any pages for the following text string - and check the browser URL. Certificate valid since 2 January 2017

    "Hello! The TLS version of the site isn't quite ready for prime time, please bear with us... Contact us at webmaster@ for any issue! "

  14. B*s*

    It's to late, they have provided evidence to the general public of there disregard towards data protection.

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