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Data Retention and Investigatory Powers Act 2014

Commentary

Retention of relevant communications data

Section 1: Powers for retention of relevant communications data subject to safeguards

28.Subsection (1) replaces provisions in the 2009 Regulations to allow the Secretary of State to give a notice to a telecommunications service provider requiring the retention of data. The notice may require the retention of ‘relevant communications data’, defined in section 2(1) as the data types set out in the Schedule to the 2009 Regulations. The Schedule includes data falling into the categories of fixed network telephony (part 1), mobile telephony (part 2), and internet access, internet e-mail or internet telephony (part 3). Section 1 creates the additional safeguard that the Secretary of State must consider whether it is necessary and proportionate to give the notice for one or more of the purposes set out in section 22(2) of RIPA. These purposes, which are the same purposes for which retained data can be accessed under RIPA, are:

a)

in the interests of national security;

b)

for the purpose of preventing or detecting crime or of preventing disorder;

c)

in the interests of the economic well-being of the United Kingdom;

d)

in the interests of public safety;

e)

for the purpose of protecting public health;

f)

for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;

g)

for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or

h)

for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of section 22(2) by an order made by the Secretary of State.

29.The economic well-being purpose for which communications data may be accessed is amended in section 3 of the Act and this change feeds through into the corresponding purpose for the retention of relevant communications data.

30.The Secretary of State has previously added the following further purposes:

a.

to assist investigations into alleged miscarriages of justice, or

b.

where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition-

i.

to assist in identifying P, or

ii.

to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition.

31.Telecommunications service providers will not be required to retain data unless they have been given a notice by the Secretary of State.

32.Subsection (2) lists the issues a notice may cover. Paragraph (a) specifies that the notice can apply to a specific telecommunications service provider. Alternatively, it can provide a description of providers to ensure that all those that fit the description are required to retain data. Paragraph (b) provides that a notice may require the retention of all data or any description of data. A notice cannot require the retention of data types other than those that were required to be retained by the 2009 Regulations, but may limit the requirement to a subset of these data types where appropriate. Paragraph (c) allows for a retention notice to specify the period or periods for which data is to be retained. Paragraph (d) provides for a notice to include requirements and restrictions in relation to data retention. Therefore, for example, a notice could require a provider to keep data retained under a notice in a separate store from data retained for other purposes. Paragraph (e) allows for a notice to make different data types subject to different provisions so, for example, there may be a requirement to retain different types of data for different periods of time. Paragraph (f) permits the data retention notice to apply to data whether or not the data is in existence at the time of the notice. If the data is in existence the maximum amount of time new regulations would permit it to be retained will still be 12 months (see subsection (5)).

33.Subsection (3) allows for the Secretary of State to make regulations relating to the retention of relevant communications data. These regulations will replace the 2009 Regulations.

34.Subsection (4) gives examples of the matters that may be provided for in the regulations. This includes: what the Secretary of State should consider before issuing a notice; the procedure for when the notice will come into force, including variation or revocation; the integrity and security of the retained data; enforcement and auditing compliance; a code of practice which will provide specific guidelines on data retention; the reimbursement of telecommunications service providers who incur costs while fulfilling any obligations in their notice; and the transitional measures from the 2009 Regulations.

35.Subsection (5) specifies that the maximum retention period which can be provided for in the regulations made under subsection (3) is 12 months from a date specified in the regulations.

36.Subsection (6) specifies that data retained under the provisions in this legislation can only be acquired through Chapter 2 of Part 1 of RIPA, through an order of the court or other judicial warrant or authorisation, or as specified in regulations made under subsection (3).

37.Subsection (7) permits the Secretary of State to make regulations which apply any provision that is capable of being made by virtue of subsections (4)(d) to (4)(g) or subsection (6) to data that is retained on a voluntary basis under the Anti-terrorism, Crime and Security Act 2001 (“ATCSA”). This power could be used to apply the safeguards in the regulations to data retained under the ATCSA.

Section 2: Section 1: supplementary

38.Subsection (1) provides relevant definitions. The Act uses definitions of telecommunications service provider and communications data as set out in Part 1 of RIPA. This is to ensure uniform definitions across access and retention regimes. Other definitions of terms used in the list of categories of data remain as set out in the 2009 Regulations. ‘Relevant communications data’ is defined as the data mentioned in the Schedule to the 2009 Regulations, so far as that data is generated or processed in the United Kingdom by public telecommunications operators in the process of supplying the telecommunications services concerned. The definition of public telecommunications operator ensures that a telecommunications systems provider or a telecommunications service provider can be subject to a notice. This distinction occurs, for example, when a company uses the physical network (this includes the network bandwidth and phone lines) belonging to another in order to provide their services to the public. The definition ensures that a request to retain can be imposed on whichever company holds the relevant data (which will depend on how they design their systems).

39.Subsection (2) provides that ‘relevant communications data’ includes data relating to unsuccessful call attempts but not unconnected calls. An unsuccessful call occurs, for example, when the person being dialled does not answer the call, but where the network has been able to successfully connect it. An unconnected call is where, for example, a call is placed, but the network is unable to carry it to its intended recipient. It is also made clear that “relevant communications data” is not the content of the communication.

40.Subsection (3) provides for the regulations to replicate the Schedule to the 2009 Regulations, for ease of reference and so the position is clear once the 2009 Regulations have been revoked.

41.Subsection (4) provides for the regulations under section 1 to be made by statutory instrument and for such regulations, by virtue of subsection (4)(b)(i), to confer or impose functions on any person. Paragraph (c) allows for codes of practice to be made, in particular by modifying sections 71 and 72 of RIPA.

42.Subsection (5) specifies that any statutory instrument under section 1 will be subject to the affirmative resolution procedure.

Investigatory powers

Section 3: Grounds for issuing warrants and obtaining data

43.Subsections (1) and (2) amend section 5 of RIPA regarding the Secretary of State’s power to issue interception warrants on the grounds of economic well-being. The Interception of Communications Code of Practice, made under section 71 of RIPA, specifies that interception warrants can only be issued on such grounds when economic well-being is directly related to national security. In the interests of clarity, the Act makes express provision for this requirement by amending RIPA.

44.Subsections (3) and (4) make the same amendment as subsections (1) and (2) but with respect to access to communications data. The Acquisition and Disclosure of Communications Data Code of Practice, made under section 71 of RIPA, specifies that data can only be acquired in the interests of the economic well-being of the United Kingdom when it specifically relates to national security. The Act also makes express provision for this requirement by amending RIPA.

Section 4: Extra-territoriality in Part 1 of RIPA

45.This section clarifies certain provisions of Chapters 1 and 2 of Part 1 of RIPA to put beyond doubt that those provisions have extra-territorial effect.

46.Subsection (1) provides that Part 1 of RIPA is amended.

47.Subsection (2) inserts new subsections into section 11 of RIPA (implementation of interception warrants). New subsection (2A) provides that a copy of an interception warrant may be served on a person outside the United Kingdom, and may relate to conduct outside the United Kingdom. New subsection (2B) provides for the practicalities of serving the warrant on a person based outside the United Kingdom. The warrant can be served (in addition to service by electronic or other means) at an office within the United Kingdom, to an address, specified by the overseas person, within the United Kingdom, or by making it available for inspection within the United Kingdom. New subsection (2C) provides that the method of service by making available for inspection is only available where no other means of service is reasonably practicable, and that appropriate steps must be taken to bring the warrant to the attention of the person on whom a copy is served.

48.Subsection (3) amends section 11(4) of RIPA. That subsection provides that where a copy of a warrant is served on a person who provides a postal service, a person who provides a public telecommunications service (defined as a telecommunications service provided to the public in the United Kingdom), or a person having control of telecommunication system in the United Kingdom, that person has a duty to take steps to give effect to the warrant. Subsection (3) amends section 11(4) to make clear the duty applies whether or not the person is in the United Kingdom.

49.Subsection (4) inserts a new subsection (5A) into section 11 of RIPA, which sets out factors to be taken into account when determining whether steps for giving effect to a warrant are reasonably practicable.

50.Subsection (5) amends section 11(8) of RIPA, which provides that the obligation to give effect to the warrant is enforceable by civil proceedings. The amendment clarifies that this applies where the person subject to the duty is outside the United Kingdom.

51.Subsection (6) inserts new subsections into section 12 of RIPA (maintenance of interception capability). New subsection (3A) specifies that the Secretary of State’s power to give a notice requiring the maintenance of a permanent interception capability to a telecommunications service provider may be exercised in respect of a provider based outside the United Kingdom or in relation to conduct outside the United Kingdom. A public telecommunications service is one provided to the public in the United Kingdom. New subsection (3B) provides for the practicalities of giving a notice to a person based outside the United Kingdom. In addition to electronic or other means, it may be given by delivering it to an office in the United Kingdom, or to a specified address in the United Kingdom.

52.Subsection (7) amends section 12(7) of RIPA, which provides that where a notice to maintain an interception capability has been served on a telecommunications service provider, that person has a duty to comply with the notice, enforceable by civil proceedings for an injunction. The amendment makes clear that the duty, and the power to enforce, apply whether or not the telecommunications service provider is in the United Kingdom.

53.Subsection (8) inserts new subsections into section 22 of RIPA (obtaining and disclosing communications data). New subsection (5A) provides that an authorisation or a notice for the obtaining of communications data under section 22 may relate to conduct outside the United Kingdom, and a notice may be given to a person outside the United Kingdom. New subsection (5B) provides for the practicalities of giving a notice to a person outside the United Kingdom.

54.Subsection (9) amends section 22(6) of RIPA to make clear that the duty on a postal or telecommunications operator to comply with a notice applies whether or not the operator is in the United Kingdom.

55.Subsection (10) amends section 22(8) of RIPA to make clear that the power to enforce that duty by civil proceedings applies in respect of a person outside the United Kingdom.

Section 5: Meaning of “telecommunications service”

56.This section inserts a new subsection into section 2 of RIPA. New section 2(8A) makes clear that the definition of “telecommunications service” includes companies who provide internet-based services, such as webmail.

Section 6: Half yearly reports by the Interception of Communications Commissioner

57.RIPA provides for annual reports by the Interception of Communications Commissioner. This section amends RIPA to require the Commissioner to report half-yearly. As with the yearly reports, the half-yearly report must be laid before Parliament and sent to the Prime Minister. As in section 58(7) of RIPA, the Prime Minister will retain the power to exclude information from half-yearly reports. This includes when disclosure is against the public interest or for reasons of national security.

Section 7: Review of investigatory powers and their regulation

58.Subsection (1) provides for the Secretary of State to appoint the independent reviewer of terrorism legislation to review the regulation and operation of investigatory powers. The independent reviewer is a post that already exists under the Terrorism Act 2006. This section will add these additional responsibilities to his remit until a report has been provided to the Prime Minister (see subsection (4)).

59.Subsection (2) provides for the issues that the independent reviewer must consider. Specifically, the independent reviewer must consider current and future threats to the United Kingdom; capabilities needed to combat such threats; privacy safeguards; challenges faced by changing technologies; transparency and oversight; and the effectiveness of existing legislation and whether there is a case for new or amending legislation.

60.Subsection (3) ensures, if reasonably practicable, that the review will be completed by 1 May 2015.

61.Subsection (4) specifies that a report on the outcome of the review must be sent to the Prime Minister.

62.Subsections (5) and (6) provide for the Prime Minister to lay a copy of the report before Parliament. If the Prime Minister decides that publishing certain sections of the report will be contrary to the public interest or prejudicial to national security they can be excluded from the report. When the Prime Minister wishes to exclude a section from the report a statement must be provided to Parliament that the section has been excluded.

63.Subsection (7) provides for the Secretary of State to pay the independent reviewer expenses incurred in carrying out functions under this section.

64.Subsection (8) specifies that the independent reviewer is the person appointed under section 36(1) of the Terrorism Act 2006.

65.Once the independent reviewer has provided his report to the Prime Minister, the additional responsibilities under this section will cease.

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