Author archive

Graham Smith

Graham Smith is a partner at Bird & Bird, specialising in internet, IT and intellectual property law. He is the author of Sweet & Maxwell’s Internet Law and Regulation and blogs as Cyberleagle. Email Graham.Smith@twobirds.com. Twitter @cyberleagle.

To launch a new edition of a legal textbook in the very month that the UK is about to leave the EU – let alone a book focused on the internet at the height of the techlash – may seem a little reckless.

Or perhaps not. Internet law stays still for hardly a moment anyway. The couple of months since the 5th edition of Internet Law and Regulation went to press have already seen two domestic High Court decisions, one CJEU judgment and an Advocate General Opinion all on copyright communication to the public; not to mention three CJEU Advocate General Opinions on government powers to mandate communications data retention for law enforcement and security. As I write, regulations have been laid to implement the UK-US Agreement facilitating cross border data and interception requests direct to online service providers. A textbook in this field is inevitably a snapshot of a rapidly changing landscape.

Content conundrum

The contest at the heart of the Investigatory Powers Act

After more scrutiny than probably any other piece of legislation in recent memory, the Investigatory Powers Bill received Royal Assent in November. Notwithstanding the amount of Parliamentary time spent on the 300 pages of powers and safeguards, underpinning the Act are some complex and abstractly defined (in some cases undefined) concepts. Nowhere is this more true than in the distinction the legislation tries to draw between between content and metadata.

The distinction matters because the Act applies fewer safeguards and constraints to selection and examination of metadata than to content.

The government’s position, which finds support in human rights law, is that intercepting, acquiring, processing and examining the content of a communication is more intrusive than for the “who, when, where, how” contextual data wrapped around it.