The Retention and Processing of Communications Data for Law Enforcement: A Challenge for Privacy

Law enforcement agencies are dominant end users of information communication technologies. These technologies are not necessarily created for pursuing criminal justice objectives. They are mechanisms that are built, administered, and maintained by private actors for their own purposes and later incorporated into law enforcement processes. They serve an effective role in the investigation, detection, and prosecution of crime, particularly through their collection and processing of relevant data. For the purposes of this thesis, the data at issue concerns the who, where, when, and how of a communication. Broadly classed as 'communications data' this information is readily and consistently available due to technological developments which result in blanket collection and retention, enable easier access, and create opportunities to derive greater meaning from the information through data analysis. The thesis examines the challenges of reconciling privacy with the use of this data in policing by conducting a critical analysis of 'how, and to what extent, do the current legal and policy frameworks governing the retention of, access to, and analysis of communications data by law enforcement, constitute a violation of privacy which requires substantive changes to the legal regime?'.

Employing the approach of Thomas P. Hughes for examining socio-technical systems, the thesis argues that technology and privacy are co-constructed. This is evidenced though the evolution of the technology and the relevant legal and policy factors which contributed to the information communication system's development and acceptance as a policing tool. Three key areas, namely data retention, access to data, and data analysis are used to explore how communications data intersects with law enforcement objectives. Each element of the system is critiqued to assess significant changes in actors and roles, information types, and transmission principles. Utilising Helen Nissenbaum's theory of contextual integrity, it is argued that changes in each of the three key areas represent a prima facie violation of informational norms. Where a violation of these norms is identified, it is then evaluated against the perceived benefits of the technology to determine the impact on privacy. The impact on privacy is weighed against the existing legal safeguards in the investigatory powers mechanisms. Examining the privacy interest in a contextual manner allows for the specifics of the technology system to be incorporated into the assessment of the privacy violations.

The thesis concludes that it is insufficient to apply traditional interpretations of privacy to technologies which have fundamentally altered social expectations through the scale/scope of data, the deconstruction of traditional boundaries, the limitation of ephemerality, and changes in technologically mediated presence. Applying a legal framework which does not acknowledge this impact fails to guarantee fundamental privacy rights. A number of recommendations are advanced for reform of the investigatory powers mechanisms to ensure privacy is protected when communications data is utilised by law enforcement.