The Cable

The Ironies of Brexit: Surveillance Policy Edition

Theresa May opposed Brexit, but it might bail out her surveillance regime.

BERLIN, GERMANY - JULY 20:  British Prime Minister Theresa May walks past European Union flags as she and German Chancellor Angela Merkel (not pictured) arrive to speak to the media following talks at the Chancellery on July 20, 2016 in Berlin, Germany. May, who replaced David Cameron as prime minister last week in the wake of the Brexit vote that will take the United Kingdom out of the European Union, is visiting Germany and France in her first foreign trip since assuming office.  (Photo by Sean Gallup/Getty Images)
BERLIN, GERMANY - JULY 20: British Prime Minister Theresa May walks past European Union flags as she and German Chancellor Angela Merkel (not pictured) arrive to speak to the media following talks at the Chancellery on July 20, 2016 in Berlin, Germany. May, who replaced David Cameron as prime minister last week in the wake of the Brexit vote that will take the United Kingdom out of the European Union, is visiting Germany and France in her first foreign trip since assuming office. (Photo by Sean Gallup/Getty Images)

Wednesday’s ruling by the European Court of Justice, challenging key provisions of Britain’s surveillance regime, contained a wonderful irony. The case was brought in part by David Davis, the United Kingdom’s so-called “Brexit secretary,” and challenged powers championed by his current boss, Prime Minister Theresa May.

In their landmark ruling, the ECJ’s justices challenged the data retention provisions of a 2014 surveillance law that allowed London to force companies to keep electronic communication records for up to a year.

“General and indiscriminate” retention of such records “exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society,” the court found. The retained data concerns communication metadata — including who was contacted, and for how long, for example — and not content.

The court found that data retention requirements must be limited in scope and not blanket requirements. “Retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained,” the ECJ said in a summary of its ruling.

Wednesday’s ruling comes amid a roiling debate in Europe over the proper limits between national security and privacy rights. A spate of terror attacks in Europe have led to authorities in France and Germany to expand and invest in surveillance capabilities. But the ECJ ruling indicates that the aggressive measures pioneered by Britain may run headlong into European Union regulations.

As one of the campaigners for Britain’s exit from the EU, Davis called for a withdrawal from what he described as EU meddling in U.K. matters. But that didn’t stop the civil libertarian from signing onto legal action attempting to use EU law to strike down a British measure.

It’s exactly that kind of interference in domestic affairs that many Brexit supporters sought to end, but which Davis put to good use in challenging Britain’s extremely aggressive surveillance regime. Expansive data retention, he argued before the ECJ, amounts to “treating the entire nation as suspects.”

Since the 2014 law, known as the Data Retention and Investigatory Powers Act, Parliament has passed a far more intrusive surveillance measure that takes effect next month. Known as the Investigatory Powers Act, the law hands the British government vast powers to carry out surveillance activities and includes data retention provisions of the 2014 statute.

Wednesday’s ruling doesn’t directly affect the Investigatory Powers Act, better known as the “Snooper’s Charter,” but may place it on shaky legal footing and open to challenge in Britain. But if the U.K. pulls out of the EU, the ruling will likely be moot as the ECJ will no longer have jurisdiction in Britain.

While serving as home secretary, May was the principal architect of the Snooper’s Charter and quietly opposed Brexit. It’s one of the many ironies of the post-Brexit era that her surveillance policies may be saved by Britain’s departure from the EU.

Sean Gallup/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace, its conflicts, and controversies. @eliasgroll

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