12 Maintenance of interception capability.E+W+S+N.I.
(1)The Secretary of State may by order provide for the imposition by him on persons who—
(a)are providing public postal services or public telecommunications services, or
(b)are proposing to do so,
of such obligations as it appears to him reasonable to impose for the purpose of securing that it is and remains practicable for requirements to provide assistance in relation to interception warrants to be imposed and complied with.
(2)The Secretary of State’s power to impose the obligations provided for by an order under this section shall be exercisable by the giving, in accordance with the order, of a notice requiring the person who is to be subject to the obligations to take all such steps as may be specified or described in the notice.
(3)Subject to subsection (11), the only steps that may be specified or described in a notice given to a person under subsection (2) are steps appearing to the Secretary of State to be necessary for securing that that person has the practical capability of providing any assistance which he may be required to provide in relation to relevant interception warrants.
(4)A person shall not be liable to have an obligation imposed on him in accordance with an order under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than—
(a)the means by which he provides a service which is not a telecommunications service; or
(b)necessarily incidental to the provision by him of a service which is not a telecommunications service.
(5)Where a notice is given to any person under subsection (2) and otherwise than by virtue of subsection (6)(c), that person may, before the end of such period as may be specified in an order under this section, refer the notice to the Technical Advisory Board.
(6)Where a notice given to any person under subsection (2) is referred to the Technical Advisory Board under subsection (5)—
(a)there shall be no requirement for that person to comply, except in pursuance of a notice under paragraph (c)(ii), with any obligations imposed by the notice;
(b)the Board shall consider the technical requirements and the financial consequences, for the person making the reference, of the notice referred to them and shall report their conclusions on those matters to that person and to the Secretary of State; and
(c)the Secretary of State, after considering any report of the Board relating to the notice, may either—
(i)withdraw the notice; or
(ii)give a further notice under subsection (2) confirming its effect, with or without modifications.
(7)It shall be the duty of a person to whom a notice is given under subsection (2) to comply with the notice; and that duty shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the M1Court of Session Act 1988, or for any other appropriate relief.
(8)A notice for the purposes of subsection (2) must specify such period as appears to the Secretary of State to be reasonable as the period within which the steps specified or described in the notice are to be taken.
(9)Before making an order under this section the Secretary of State shall consult with—
(a)such persons appearing to him to be likely to be subject to the obligations for which it provides,
(b)the Technical Advisory Board,
(c)such persons representing persons falling within paragraph (a), and
(d)such persons with statutory functions in relation to persons falling within that paragraph,
as he considers appropriate.
(10)The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(11)For the purposes of this section the question whether a person has the practical capability of providing assistance in relation to relevant interception warrants shall include the question whether all such arrangements have been made as the Secretary of State considers necessary—
(a)with respect to the disclosure of intercepted material;
(b)for the purpose of ensuring that security and confidentiality are maintained in relation to, and to matters connected with, the provision of any such assistance; and
(c)for the purpose of facilitating the carrying out of any functions in relation to this Chapter of the Interception of Communications Commissioner;
but before determining for the purposes of the making of any order, or the imposition of any obligation, under this section what arrangements he considers necessary for the purpose mentioned in paragraph (c) the Secretary of State shall consult that Commissioner.
(12)In this section “relevant interception warrant”—
(a)in relation to a person providing a public postal service, means an interception warrant relating to the interception of communications in the course of their transmission by means of that service; and
(b)in relation to a person providing a public telecommunications service, means an interception warrant relating to the interception of communications in the course of their transmission by means of a telecommunication system used for the purposes of that service.
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