Analysis Jacqui Smith will soon begin one of the Home Office's famed consultation exercises on new systems demanded by spy chiefs to snoop on internet communications in the UK. But already, the mangle of powers and regulations around data retention threatens public understanding of what is being suggested.

A somewhat confused report from the BBC today attempts to trace the links between the Interception Modernisation Programme (IMP) and the imminently-in-force EU Data Retention Directive (EUDRD). It fails:

The new rules are due to come into force on 15 March, as part of a European Commission directive which could affect every ISP in the country. The firms will have to store the information under the government's Interception Modernisation Programme (IMP) and make it available to any public body which makes a lawful request. That could include police, local councils and health authorities. To help set up the system the government may end up paying ISPs between £25m and £70m.

This is false. In fact, the EUDRD has nothing to do with IMP; certainly legislatively, and very likely technically. The EUDRD mandates communications data retention by ISPs in house, across the EU. IMP could propose retention by the UK government in a centralised database (more details here).

Both were originally to be implemented by the Communications Data Bill as related but separate legal acknowledgements of law enforcement and intelligence agencies' increased reliance on communications data (according to Jacqui Smith, it's been used "as important evidence in 95 per cent of serious crime cases" since 2004).

That marriage of convenience was cancelled, however, when it became clear its passage through parliament would cause the UK to fail to meet its legal obligation to transpose the EUDRD by March 15. Instead the directive is being made UK law by statutory instrument (secondary legislation without a parliamentary hearing), as we reported in August last year.

In the meantime, Whitehall infighting over the much more ambitious IMP intensified, prompting Jacqui Smith to drop the Communications Data Bill from the Queen's Speech in favour of a public consultation, putatively scheduled to begin around the end of this month.

Where the two can be conflated is in how ISPs are trying to understand what they need to do while civil servants and politicians make up their minds over IMP.

For the big ISPs who control more than 95 per cent of the domestic internet access market, the EUDRD will change nothing; they already retain the data for billing and marketing, and frequently serve law enforcement and intelligence requests for access. They are able to simply wait for the IMP consultation to come to its conclusions.

For smaller outfits parsing UK.gov is more tricky. In Home Office briefings to industry, questions about whether IMP means boutique ISPs can skip the costs of EUDRD compliance have been met with various shrugging, hand waving and circular arguing from officials. They've given tacit assurances that bit part players in the market needn't concern themselves with the EUDRD, because - nudge, nudge - IMP will take care of law enforcement's access needs soon enough.

Understandably, compliance reps for these have been left unsatified. We covered their predicament in October. (Of course, unlike fundamental civil liberties concerns over the power IMP's central database would concentrate, ISP worries over foggy government thinking on EUDRD are mostly about cash and legal exposure.)

Highlighting such official incompetence is important, but as far as the interests of average UK internet user is concerned, implementation of the EUDRD has been scheduled for years, and battles over its limited privacy implications fought and seemingly lost.

Officials' apparent inability to elucidate their own rules on data retention is relevant, but confusing the EUDRD with the much more intrusive IMP is unhelpful weeks before the first formal public skirmishes begin. ®

Bootnote

Over the festive period The Guardian's front page led with "news" that a centralised communications data silo could be run in part by private contractors. But you knew that, and who the favourites are.