Investigatory Powers Bill (HC Bill 143)

Investigatory Powers BillPage 130

(5) Sections 110 (service of warrants outside the United Kingdom) and 111 (duty
of telecommunications operators to assist with implementation) apply in
relation to a bulk equipment interference warrant as they apply in relation to a
targeted equipment interference warrant issued under section 91 by the
5Secretary of State.

(6) References in this section (and in sections 110 and 111 as they apply in relation
to bulk equipment interference warrants) to the service of a copy of a warrant
include—

(a) the service of a copy of one or more schedules contained in the warrant
10with the omission of the remainder of the warrant, and

(b) the service of a copy of the warrant with the omission of any schedule
contained in the warrant.

Restrictions on use or disclosure of material obtained under warrants etc.

168 Safeguards relating to retention and disclosure of material

(1) 15The Secretary of State must ensure, in relation to every bulk equipment
interference warrant, that arrangements are in force for securing—

(a) that the requirements of subsections (2) and (5) are met in relation to the
material obtained under the warrant, and

(b) that the requirements of section 170 are met in relation to that material.

20This is subject to subsection (8).

(2) The requirements of this subsection are met in relation to the material obtained
under the warrant if each of the following is limited to the minimum that is
necessary for the authorised purposes (see subsection (3))—

(a) the number of persons to whom any of the material is disclosed or
25otherwise made available;

(b) the extent to which any of the material is disclosed or otherwise made
available;

(c) the extent to which any of the material is copied;

(d) the number of copies that are made.

(3) 30For the purposes of subsection (2) something is necessary for the authorised
purposes if, and only if—

(a) it is, or is likely to become, necessary in the interests of national security
or on any other grounds falling within section 156(2),

(b) it is necessary for facilitating the carrying out of any functions under
35this Act of the Secretary of State, the Scottish Ministers or the head of
the intelligence service to whom the warrant is or was addressed,

(c) it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or of the Investigatory Powers Tribunal under
or in relation to this Act,

(d) 40it is necessary for the purpose of legal proceedings, or

(e) it is necessary for the performance of the functions of any person by or
under any enactment.

(4) The arrangements for the time being in force under this section for securing
that the requirements of subsection (2) are met in relation to the material
45obtained under the warrant must include arrangements for securing that every

Investigatory Powers BillPage 131

copy made of any of that material is stored, for so long as it is retained, in a
secure manner.

(5) The requirements of this subsection are met in relation to the material obtained
under the warrant if every copy made of any of that material (if not destroyed
5earlier) is destroyed as soon as there are no longer any relevant grounds for
retaining it (see subsection (6)).

(6) For the purposes of subsection (5), there are no longer any relevant grounds for
retaining a copy of any material if, and only if—

(a) its retention is not necessary, or not likely to become necessary, in the
10interests of national security or on any other grounds falling within
section 156(2), and

(b) its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (e) of subsection (3) above.

(7) Subsection (8) applies if—

(a) 15any material obtained under the warrant has been handed over to any
overseas authorities, or

(b) a copy of any such material has been given to any overseas authorities.

(8) To the extent that the requirements of subsections (2) and (5) relate to any of
the material mentioned in subsection (7)(a), or to the copy mentioned in
20subsection (7)(b), the arrangements made for the purpose of this section are not
required to secure that those requirements are met (see instead section 169).

(9) In this section—

  • “copy”, in relation to any material obtained under a warrant, means any
    of the following (whether or not in documentary form)—

    (a)

    25any copy, extract or summary of the material which identifies
    the material as having been obtained under the warrant, and

    (b)

    any record which is a record of the identities of persons who
    owned, used or were in possession of the equipment which was
    interfered with to obtain that material,

    30and “copied” is to be read accordingly;

  • “overseas authorities” means authorities of a country or territory outside
    the United Kingdom.

169 Safeguards relating to disclosure of material or data overseas

(1) The Secretary of State must ensure, in relation to every bulk equipment
35interference warrant, that arrangements are in force for securing that—

(a) any material obtained under the warrant is handed over to overseas
authorities only if the requirements of subsection (2) are met, and

(b) copies of any such material are given to overseas authorities only if
those requirements are met.

(2) 40The requirements of this subsection are met in the case of a warrant if it appears
to the Secretary of State that requirements corresponding to the requirements
of section 168(2) and (5) (“the relevant requirements”) will apply, to such extent
(if any) as the Secretary of State considers appropriate, in relation to any of the
material which is handed over, or any copy of which is given, to the authorities
45in question.

(3) In this section—

    Investigatory Powers BillPage 132

  • “copy” has the same meaning as in section 168;

  • “overseas authorities” means authorities of a country or territory outside
    the United Kingdom.

170 Safeguards relating to examination of material etc.

(1) 5For the purposes of section 168, the requirements of this section are met in
relation to the material obtained under a warrant if—

(a) any selection of the material obtained under the warrant is carried out
only for the specified purposes (see subsection (2)),

(b) the selection of any of the material for examination is necessary and
10proportionate in all the circumstances, and

(c) where any such material is protected material, the selection of the
material for examination meets any of the selection conditions (see
subsection (3)).

(2) The selection of material obtained under the warrant is carried out only for the
15specified purposes if the material is selected for examination only so far as is
necessary for the operational purposes specified in the warrant in accordance
with section 161.

In this subsection “specified in the warrant” means specified in the warrant at
the time of the selection of the material for examination.

(3) 20The selection conditions referred to in subsection (1)(c) are—

(a) that the selection of the protected material for examination does not
breach the prohibition in subsection (4);

(b) that the person to whom the warrant is addressed reasonably considers
that the selection of the protected material for examination would not
25breach that prohibition;

(c) that the selection of the protected material for examination in breach of
that prohibition is authorised by subsection (5);

(d) that the selection of the protected material for examination in breach of
that prohibition is authorised by a targeted examination warrant issued
30under Part 5.

(4) The prohibition referred to in subsection (3)(a) is that the protected material
may not at any time be selected for examination if—

(a) any criteria used for the selection of the material for examination are
referable to an individual known to be in the British Islands at that time,
35and

(b) the purpose of using those criteria is to identify protected material
consisting of communications sent by, or intended for, that individual
or private information relating to that individual.

It does not matter for the purposes of this subsection whether the identity of
40the individual is known.

(5) The selection of protected material (“the relevant material”) for examination is
authorised by this subsection if—

(a) criteria referable to an individual have been, or are being, used for the
selection of material for examination in circumstances falling within
45subsection (3)(a) or (b),

(b) at any time it appears to the person to whom the warrant is addressed
that there has been a relevant change of circumstances in relation to the
individual (see subsection (6)) which would mean that the selection of

Investigatory Powers BillPage 133

the relevant material for examination would breach the prohibition in
subsection (4),

(c) since that time, a written authorisation to examine the relevant material
using those criteria has been given by a senior officer, and

(d) 5the selection of the relevant material for examination is made before the
end of the permitted period (see subsection (7)).

(6) For the purposes of subsection (5)(b) there is a relevant change of
circumstances in relation to an individual if—

(a) the individual has entered the British Islands, or

(b) 10a belief by the person to whom the warrant is addressed that the
individual was outside the British Islands was in fact mistaken.

(7) In subsection (5)—

  • “senior officer”, in relation to a warrant addressed to the head of an
    intelligence service, means a member of the intelligence service who—

    (a)

    15is a member of the Senior Civil Service or a member of the
    Senior Management Structure of Her Majesty’s Diplomatic
    Service, or

    (b)

    holds a position in the intelligence service of equivalent
    seniority to such a member;

  • 20“the permitted period” means the period ending with the fifth working
    day after the time permitted in subsection (5)(b).

(8) In a case where the selection of protected material for examination is
authorised by subsection (5), the person to whom the warrant is addressed
must notify the Secretary of State that the selection is being carried out.

(9) 25In this section, “protected material” means any material obtained under the
warrant other than material which is—

(a) equipment data;

(b) information (other than a communication or equipment data) which is
not private information.

171 30Additional safeguards for items subject to legal privilege

(1) Subsection (2) applies if, in a case where protected material obtained under a
bulk equipment interference warrant is to be selected for examination—

(a) the selection of the material for examination meets any of the selection
conditions in section 170(3)(a) to (c), and

(b) 35either—

(i) the purpose, or one of the purposes, of using the criteria to be
used for the selection of the material for examination (“the
relevant criteria”) is to identify any items subject to legal
privilege, or

(ii) 40the use of the relevant criteria is likely to identify such items.

(2) The material may be selected for examination using the relevant criteria only if
a senior official acting on behalf of the Secretary of State has approved the use
of those criteria.

(3) A senior official may give an approval under subsection (2) only if—

(a) 45the official considers that the arrangements made for the purposes of
section 168 (safeguards relating to retention and disclosure of material)

Investigatory Powers BillPage 134

include specific arrangements for the handling, retention, use and
destruction of items subject to legal privilege, and

(b) where subsection (1)(b)(i) applies, the official considers that there are
exceptional and compelling circumstances that make it necessary to
5authorise the use of the relevant criteria.

(4) Where an item subject to legal privilege is retained following its examination
under a bulk equipment interference warrant, the person to whom the warrant
is addressed must inform the Investigatory Powers Commissioner as soon as
is reasonably practicable.

10(For provision about the grounds for retaining material obtained under a bulk
equipment interference warrant, see section 168.)

172 Application of other restrictions in relation to warrants

Sections 114 to 116 (duty not to make unauthorised disclosures) apply in
relation to bulk equipment interference warrants as they apply in relation to
15targeted equipment interference warrants, but as if the reference in section
115(2)(c) to a requirement for disclosure imposed by virtue of section 109(4)
were a reference to such a requirement imposed by virtue of section 167(4).

Interpretation

173 Chapter 3: interpretation

(1) 20In this Chapter—

  • “communication” includes—

    (a)

    anything comprising speech, music, sounds, visual images or
    data of any description, and

    (b)

    signals serving either for the impartation of anything between
    25persons, between a person and a thing or between things or for
    the actuation or control of any apparatus;

  • “equipment” means equipment producing electromagnetic, acoustic or
    other emissions or any device capable of being used in connection with
    such equipment;

  • 30“equipment data” has the meaning given by section 155;

  • “private information” includes information relating to a person’s private
    or family life;

  • “senior official” means a member of the Senior Civil Service or a member
    of the Senior Management Structure of Her Majesty’s Diplomatic
    35Service;

  • “the specified operational purposes” has the meaning given by section
    161(7).

(2) See also—

  • section 223 (telecommunications definitions);

  • 40section 225 (general definitions);

  • section 226 (index of defined expressions).

Investigatory Powers BillPage 135

Part 7 Bulk personal dataset warrants

Bulk personal datasets: interpretation

174 Bulk personal datasets: interpretation

(1) 5For the purposes of this Part, an intelligence service retains a bulk personal
dataset if—

(a) the intelligence service obtains a set of information that includes
personal data relating to a number of individuals,

(b) the nature of the set is such that the majority of the individuals are not,
10and are unlikely to become, of interest to the intelligence service in the
exercise of its functions,

(c) after any initial examination of the contents, the intelligence service
retains the set for the purpose of the exercise of its functions, and

(d) the set is held, or is to be held, electronically for analysis in the exercise
15of those functions.

(2) In this section, “personal data” has the same meaning as in the Data Protection
Act 1998 except that it also includes data relating to a deceased individual
where the data would be personal data within the meaning of that Act if it
related to a living individual.

20Requirement for warrant

175 Requirement for authorisation by warrant: general

(1) An intelligence service may not exercise a power to retain a bulk personal
dataset unless the retention of the dataset is authorised by a warrant under this
Part.

(2) 25An intelligence service may not exercise a power to examine a bulk personal
dataset retained by it unless the examination is authorised by a warrant under
this Part.

(3) For the purposes of this Part, there are two kinds of warrant—

(a) a warrant, referred to in this Part as “a class BPD warrant”, authorising
30an intelligence service to retain, or to retain and examine, any bulk
personal dataset of a class described in the warrant;

(b) a warrant, referred to in this Part as “a specific BPD warrant”,
authorising an intelligence service to retain, or to retain and examine,
any bulk personal dataset described in the warrant.

(4) 35Section 176 sets out exceptions to the restrictions imposed by subsections (1) to
(3) of this section.

176 Exceptions to section 175(1) and (2)

(1) Section 175(1) or (2) does not apply to the exercise of a power of an intelligence
service to retain or (as the case may be) examine a bulk personal dataset if the
40intelligence service obtained the bulk personal dataset under a warrant or
other authorisation issued or given under this Act.

Investigatory Powers BillPage 136

(2) Section 175(1) or (2) does not apply at any time when a bulk personal dataset
is being retained or (as the case may be) examined for the purpose of enabling
any of the information contained in it to be destroyed.

(3) Sections 189(7) and 190(5) provide for other exceptions to section 175(1) or (2)
5(in connection with the non-renewal or cancellation of BPD warrants and
initial examinations).

Issue of warrants

177 Class BPD warrants

(1) The head of an intelligence service, or a person acting on his or her behalf, may
10apply to the Secretary of State for a class BPD warrant.

(2) The application must include—

(a) a description of the class of bulk personal datasets to which the
application relates, and

(b) in a case where the intelligence service wishes to examine bulk personal
15datasets of that class, the operational purposes for which the
intelligence service wishes to do so.

(3) The Secretary of State may issue the warrant if—

(a) the Secretary of State considers that the warrant is necessary—

(i) in the interests of national security,

(ii) 20for the purposes of preventing or detecting serious crime, or

(iii) in the interests of the economic well-being of the United
Kingdom so far as those interests are also relevant to the
interests of national security,

(b) the Secretary of State considers that the conduct authorised by the
25warrant is proportionate to what is sought to be achieved by the
conduct,

(c) where the warrant authorises the examination of bulk personal datasets
of the class described in the warrant, the Secretary of State considers
that—

(i) 30each of the specified operational purposes (see section 183) is a
purpose for which the examination of bulk personal datasets of
that class is or may be necessary, and

(ii) the examination of bulk personal datasets of that class for each
such purpose is necessary on any of the grounds on which the
35Secretary of State considers the warrant to be necessary,

(d) the Secretary of State considers that the arrangements made by the
intelligence service for storing bulk personal datasets of the class to
which the application relates and for protecting them from
unauthorised disclosure are satisfactory, and

(e) 40the decision to issue the warrant has been approved by a Judicial
Commissioner.

(4) An application for a class BPD warrant may only be made on behalf of the head
of an intelligence service by a person holding office under the Crown.

Investigatory Powers BillPage 137

178 Specific BPD warrants

(1) The head of an intelligence service, or a person acting on his or her behalf, may
apply to the Secretary of State for a specific BPD warrant in the following cases.

(2) Case 1 is where—

(a) 5the intelligence service wishes to retain, or to retain and examine, a bulk
personal dataset, and

(b) the bulk personal dataset does not fall within a class described in a class
BPD warrant.

(3) Case 2 is where—

(a) 10the intelligence service wishes to retain, or to retain and examine, a bulk
personal dataset, and

(b) the bulk personal dataset falls within a class described in a class BPD
warrant but the intelligence service at any time considers that it would
be appropriate to seek a specific BPD warrant.

(4) 15The application must include—

(a) a description of the bulk personal dataset to which the application
relates, and

(b) in a case where the intelligence service wishes to examine the bulk
personal dataset, the operational purposes for which the intelligence
20service wishes to do so.

(5) The Secretary of State may issue the warrant if—

(a) the Secretary of State considers that the warrant is necessary—

(i) in the interests of national security,

(ii) for the purposes of preventing or detecting serious crime, or

(iii) 25in the interests of the economic well-being of the United
Kingdom so far as those interests are also relevant to the
interests of national security,

(b) the Secretary of State considers that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by the
30conduct,

(c) where the warrant authorises the examination of a bulk personal
dataset, the Secretary of State considers that—

(i) each of the specified operational purposes (see section 183) is a
purpose for which the examination of the bulk personal dataset
35is or may be necessary, and

(ii) the examination of the bulk personal dataset for each such
purpose is necessary on any of the grounds on which the
Secretary of State considers the warrant to be necessary,

(d) the Secretary of State considers that the arrangements made by the
40intelligence service for storing the bulk personal dataset and for
protecting it from unauthorised disclosure are satisfactory, and

(e) except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue it has been approved by
a Judicial Commissioner.

(6) 45A specific BPD warrant relating to a bulk personal dataset (“dataset A”) may
also authorise the retention or examination of other bulk personal datasets
(“replacement datasets”) that do not exist at the time of the issue of the warrant
but may reasonably be regarded as replacements for dataset A.

Investigatory Powers BillPage 138

(7) An application for a specific BPD warrant may only be made on behalf of the
head of an intelligence service by a person holding office under the Crown.

179 Approval of warrants by Judicial Commissioners

(1) In deciding whether to approve a decision to issue a class BPD warrant or a
5specific BPD warrant, a Judicial Commissioner must review the Secretary of
State’s conclusions on the following matters—

(a) whether the warrant is necessary on grounds falling within section
177(3)(a) or (as the case may be) section 178(5)(a),

(b) whether the conduct that would be authorised by the warrant is
10proportionate to what is sought to be achieved by that conduct, and

(c) where the warrant authorises examination of bulk personal datasets of
a class described in the warrant or (as the case may be) of a bulk
personal dataset described in the warrant, whether—

(i) each of the specified operational purposes (see section 183) is a
15purpose for which the examination of bulk personal datasets of
that class or (as the case may be) the bulk personal dataset is or
may be necessary, and

(ii) the examination of bulk personal datasets of that class or (as the
case may be) the bulk personal dataset is necessary as
20mentioned in section 177(3)(c)(ii) or (as the case may be) section
178(5)(c)(ii).

(2) In doing so, the Judicial Commissioner must apply the same principles as
would be applied by a court on an application for judicial review.

(3) Where a Judicial Commissioner refuses to approve a decision to issue a class
25BPD warrant or a specific BPD warrant, the Judicial Commissioner must give
the Secretary of State written reasons for the refusal.

(4) Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to issue a class BPD warrant or a
specific BPD warrant, the Secretary of State may ask the Investigatory Powers
30Commissioner to decide whether to approve the decision to issue the warrant.

180 Approval of specific BPD warrants issued in urgent cases

(1) This section applies where—

(a) a specific BPD warrant is issued without the approval of a Judicial
Commissioner, and

(b) 35the Secretary of State believed that there was an urgent need to issue it.

(2) The Secretary of State must inform a Judicial Commissioner that it has been
issued.

(3) The Judicial Commissioner must, before the end of the relevant period—

(a) decide whether to approve the decision to issue the warrant, and

(b) 40notify the Secretary of State of the Judicial Commissioner’s decision.

“The relevant period” means the period ending with the third working day
after the day on which the warrant was issued.

(4) If a Judicial Commissioner refuses to approve the decision to issue a specific
BPD warrant, the warrant—

(a) 45ceases to have effect (unless already cancelled), and

Investigatory Powers BillPage 139

(b) may not be renewed.

(5) Section 181 contains further provision about what happens if a Judicial
Commissioner refuses to approve a decision to issue a warrant.

181 Failure to approve specific BPD warrant issued in urgent case

(1) 5This section applies where under section 180(3) a Judicial Commissioner
refuses to approve the decision to issue a warrant.

(2) The head of the intelligence service to whom the warrant was addressed must,
so far as is reasonably practicable, secure that anything in the process of being
done in reliance on the warrant stops as soon as possible.

(3) 10The Judicial Commissioner may—

(a) direct that the whole or part of a bulk personal dataset retained in
reliance on the warrant is destroyed;

(b) impose conditions as to the use or retention of the whole or part of any
such bulk personal dataset.

(4) 15The Judicial Commissioner—

(a) may require an affected party to make representations about how the
Judicial Commissioner should exercise any function under subsection
(3), and

(b) must have regard to any such representations made by an affected
20party (whether or not as a result of a requirement imposed under
paragraph (a)).

(5) Each of the following is an “affected party” for the purposes of subsection (4)—

(a) the Secretary of State;

(b) the head of the intelligence service to whom the warrant was
25addressed.

(6) The Secretary of State may ask the Investigatory Powers Commissioner to
review a decision made by any other Judicial Commissioner under subsection
(3).

(7) On a review under subsection (6), the Investigatory Powers Commissioner
30may—

(a) confirm the Judicial Commissioner’s decision, or

(b) make a fresh determination.

(8) Nothing in this section or section 180 affects the lawfulness of—

(a) anything done in reliance on the warrant before it ceases to have effect;

(b) 35if anything is in the process of being done in reliance on the warrant
when it ceases to have effect—

(i) anything done before that thing could be stopped, or

(ii) anything done that it is not reasonably practicable to stop.

182 Decisions to issue warrants to be taken personally by Secretary of State

(1) 40The decision to issue a class BPD warrant or a specific BPD warrant must be
taken personally by the Secretary of State.

(2) Before a class BPD warrant is issued, it must be signed by the Secretary of State.