Investigatory Powers Bill (HC Bill 143)

Investigatory Powers BillPage 30

(5) In determining for the purposes of subsection (4) whether it is reasonably
practicable for a relevant operator outside the United Kingdom to take any
steps in a country or territory outside the United Kingdom for giving effect to
a warrant, the matters to be taken into account include the following—

(a) 5any requirements or restrictions under the law of that country or
territory that are relevant to the taking of those steps, and

(b) the extent to which it is reasonably practicable to give effect to the
warrant in a way that does not breach any of those requirements or
restrictions.

(6) 10Where obligations have been imposed on a relevant operator (“P”) under
section 217 (maintenance of technical capability), for the purposes of
subsection (4) the steps which it is reasonably practicable for P to take include
every step which it would have been reasonably practicable for P to take if P
had complied with all of those obligations.

(7) 15A person who knowingly fails to comply with subsection (1) is guilty of an
offence and liable—

(a) on summary conviction in England and Wales—

(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
20commencement of section 154(1) of the Criminal Justice Act
2003), or

(ii) to a fine,

or to both;

(b) on summary conviction in Scotland—

(i) 25to imprisonment for a term not exceeding 12 months, or

(ii) to a fine not exceeding the statutory maximum,

or to both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) 30to a fine not exceeding the statutory maximum,

or to both;

(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or to both.

(8) The duty imposed by subsection (1) is enforceable (whether or not the person
35is in the United Kingdom) by civil proceedings by the Secretary of State for an
injunction, or for specific performance of a statutory duty under section 45 of
the Court of Session Act 1988, or for any other appropriate relief.

CHAPTER 2 Other forms of lawful interception

Interception with consent

37 40Interception with the consent of the sender or recipient

(1) The interception of a communication is authorised by this section if the sender
and the intended recipient of the communication have each consented to its
interception.

Investigatory Powers BillPage 31

(2) The interception of a communication is authorised by this section if—

(a) the communication is one sent by, or intended for, a person who has
consented to the interception, and

(b) surveillance by means of that interception has been authorised under—

(i) 5Part 2 of the Regulation of Investigatory Powers Act 2000, or

(ii) the Regulation of Investigatory Powers (Scotland) Act 2000
(2000 asp 112000 asp 11).

Interception for administrative or enforcement purposes

38 Interception by providers of postal or telecommunications services

(1) 10The interception of a communication is authorised by this section if the
interception is carried out—

(a) by, or on behalf of, a person who provides a postal service or a
telecommunications service, and

(b) for any of the purposes in subsection (2).

(2) 15The purposes referred to in subsection (1) are—

(a) purposes relating to the provision or operation of the service;

(b) purposes relating to the enforcement, in relation to the service, of any
enactment relating to—

(i) the use of postal or telecommunications services, or

(ii) 20the content of communications transmitted by means of such
services;

(c) purposes relating to the provision of services or facilities aimed at
preventing or restricting the viewing or publication of the content of
communications transmitted by means of postal or
25telecommunications services.

(3) A reference in this section to anything carried out for purposes relating to the
provision or operation of a telecommunications service includes, among other
things, a reference to anything done for the purposes of identifying, combating
or preventing anything which could affect—

(a) 30any telecommunication system by means of which the service is
provided, or

(b) any apparatus attached to such a system.

39 Interception by businesses etc. for monitoring and record-keeping purposes

(1) Conduct is authorised by this section if it is authorised by regulations made
35under subsection (2).

(2) The Secretary of State may by regulations authorise conduct of a description
specified in the regulations if that conduct appears to the Secretary of State to
constitute a legitimate practice reasonably required for the purpose, in
connection with the carrying on of any relevant activities (see subsection (4)),
40of monitoring or keeping a record of—

(a) communications by means of which transactions are entered into in the
course of the relevant activities, or

(b) other communications relating to the relevant activities or taking place
in the course of the carrying on of those activities.

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(3) But nothing in any regulations under subsection (2) may authorise the
interception of any communication except in the course of its transmission
using apparatus or services provided by or to the person carrying on the
relevant activities for use (whether wholly or partly) in connection with those
5activities.

(4) In this section “relevant activities” means—

(a) any business,

(b) any activities of a government department, the Welsh Government, a
Northern Ireland department or any part of the Scottish
10Administration,

(c) any activities of a public authority, and

(d) any activities of any person or office holder on whom functions are
conferred by or under any enactment.

40 Postal services: interception for enforcement purposes

(1) 15The interception of a communication in the course of its transmission by means
of a public postal service is authorised by this section if it is carried out by an
officer of Revenue and Customs under section 159 of the Customs and Excise
Management Act 1979, as applied by virtue of—

(a) section 105 of the Postal Services Act 2000 (power to open postal items
20etc.), or

(b) that section and another enactment.

(2) The interception of a communication in the course of its transmission by means
of a public postal service is authorised by this section if it is carried out under
paragraph 9 of Schedule 7 to the Terrorism Act 2000 (port and border controls).

41 25Interception by OFCOM in connection with wireless telegraphy

(1) Conduct falling within subsection (2) is authorised by this section if it is carried
out by OFCOM for purposes connected with a relevant matter (see subsection
(3)).

(2) The conduct referred to in subsection (1) is—

(a) 30the interception of a communication in the course of its transmission;

(b) the obtaining, by or in connection with the interception, of information
about the sender or recipient, or intended recipient, of the
communication;

(c) the disclosure of anything obtained by conduct falling within
35paragraph (a) or (b).

(3) Each of the following is a relevant matter for the purposes of subsection (1)—

(a) the grant of wireless telegraphy licences under the Wireless Telegraphy
Act 2006 (“the 2006 Act”);

(b) the prevention or detection of anything which constitutes interference
40with wireless telegraphy;

(c) the enforcement of—

(i) any provision of Part 2 (other than Chapter 2 and sections 27 to
31) or Part 3 of the 2006 Act, or

(ii) any enactment not falling within sub-paragraph (i) that relates
45to interference with wireless telegraphy.

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(4) In this section—

  • “interference”, in relation to wireless telegraphy, has the same meaning as
    in the Wireless Telegraphy Act 2006 (see section 115(3) of that Act);

  • OFCOM” means the Office of Communications established by section 1
    5of the Office of Communications Act 2002;

  • “wireless telegraphy” has the same meaning as in the Wireless Telegraphy
    Act 2006 (see section 116 of that Act).

Interception taking place in certain institutions

42 Interception in prisons

(1) 10Conduct taking place in a prison is authorised by this section if it is conduct in
exercise of any power conferred by or under prison rules.

(2) In this section “prison rules” means any rules made under—

(a) section 47 of the Prison Act 1952,

(b) section 39 of the Prisons (Scotland) Act 1989, or

(c) 15section 13 of the Prison Act (Northern Ireland) 1953.

(3) In this section “prison” means—

(a) any prison, young offender institution, young offenders centre, secure
training centre, secure college or remand centre which—

(i) is under the general superintendence of, or is provided by, the
20Secretary of State under the Prison Act 1952, or

(ii) is under the general superintendence of, or is provided by, the
Department of Justice in Northern Ireland under the Prison Act
(Northern Ireland) 1953, or

(b) any prison, young offenders institution or remand centre which is
25under the general superintendence of the Scottish Ministers under the
Prisons (Scotland) Act 1989,

and includes any contracted out prison, within the meaning of Part 4 of the
Criminal Justice Act 1991 or section 106(4) of the Criminal Justice and Public
Order Act 1994, and any legalised police cells within the meaning of section 14
30of the Prisons (Scotland) Act 1989.

43 Interception in psychiatric hospitals etc.

(1) Conduct is authorised by this section if—

(a) it takes place in any hospital premises where high security psychiatric
services are provided, and

(b) 35it is conduct in pursuance of, and in accordance with, any relevant
direction given to the body providing those services at those premises.

(2) “Relevant direction” means—

(a) a direction under section 4(3A)(a) of the National Health Service Act
2006, or

(b) 40a direction under section 19 or 23 of the National Health Service (Wales)
Act 2006.

(3) Conduct is authorised by this section if—

(a) it takes place in a state hospital, and

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(b) it is conduct in pursuance of, and in accordance with, any direction
given to the State Hospitals Board for Scotland under section 2(5) of the
National Health Service (Scotland) Act 1978 (regulations and directions
as to the exercise of their functions by health boards).

5The reference to section 2(5) of that Act is to that provision as applied by Article
5(1) of, and the Schedule to, the State Hospitals Board for Scotland Order 1995
(which applies certain provisions of that Act to the State Hospitals Board).

(4) Conduct is authorised by this section if it is conduct in exercise of any power
conferred by or under—

(a) 10section 281 of the Mental Health (Care and Treatment) (Scotland) Act
2003 (2003 asp 132003 asp 13) (power to withhold correspondence of certain
persons detained in hospital), or

(b) section 284 of that Act (powers relating to the use of telephones by
certain persons detained in hospital).

(5) 15In this section—

  • “high security psychiatric services” has the same meaning as in section 4
    of the National Health Service Act 2006;

  • “hospital premises” has the same meaning as in section 4(3) of that Act;

  • “state hospital” has the same meaning as in the National Health Service
    20(Scotland) Act 1978.

44 Interception in immigration detention facilities

(1) Conduct taking place in immigration detention facilities is authorised by this
section if it is conduct in exercise of any power conferred by or under relevant
rules.

(2) 25In this section—

  • “immigration detention facilities” means any removal centre, short-term
    holding facility or pre-departure accommodation;

  • “removal centre”, “short-term holding facility” and “pre-departure
    accommodation” have the meaning given by section 147 of the
    30Immigration and Asylum Act 1999;

  • “relevant rules” means—

    (a)

    in the case of a removal centre, rules made under section 153 of
    that Act;

    (b)

    in the case of a short-term holding facility, rules made under, or
    35having effect by virtue of, section 157 of that Act;

    (c)

    in the case of pre-departure accommodation, rules made under,
    or having effect by virtue of, section 157A of that Act.

Interception in accordance with overseas requests

45 Interception in accordance with overseas requests

(1) 40The interception of a communication in the course of its transmission by means
of a telecommunication system is authorised by this section if conditions A to
C are met.

(2) Condition A is that the interception—

(a) is carried out by or on behalf of a telecommunications operator, and

Investigatory Powers BillPage 35

(b) relates to the use of a telecommunications service provided by the
telecommunications operator.

(3) Condition B is that the interception is carried out in response to a request made
in accordance with a relevant international agreement by the competent
5authorities of a country or territory outside the United Kingdom.

In this subsection “relevant international agreement” means an international
agreement to which the United Kingdom is a party.

(4) Condition C is that any further conditions specified in regulations made by the
Secretary of State for the purposes of this section are met.

CHAPTER 3 10Other provisions about interception

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

46 Safeguards relating to retention and disclosure of material

(1) The issuing authority must ensure, in relation to every targeted interception
warrant or mutual assistance warrant issued by that authority, that
15arrangements are in force for securing that the requirements of subsections (2)
and (5) are met in relation to the material obtained under the warrant.

This is subject to subsection (9).

(2) The requirements of this subsection are met in relation to the material obtained
under a warrant if each of the following is limited to the minimum that is
20necessary for the authorised purposes (see subsection (3))—

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

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

(c) 25the extent to which any of the material is copied;

(d) the number of copies that are made.

(3) For the purposes of this section something is necessary for the authorised
purposes if, and only if—

(a) it is, or is likely to become, necessary on any of the grounds falling
30within section 18 on which a warrant under Chapter 1 of this Part may
be necessary,

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

(c) 35it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or the Investigatory Powers Tribunal under or
in relation to this Act,

(d) it is necessary to ensure that a person (“P”) who is conducting a
criminal prosecution has the information P needs to determine what is
40required of P by P’s duty to secure the fairness of the prosecution, or

(e) it is necessary for the performance of any duty imposed on any person
by the Public Records Act 1958 or the Public Records Act (Northern
Ireland) 1923.

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(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
obtained under the warrant must include arrangements for securing that every
copy made of any of that material is stored, for so long as it is retained, in a
5secure manner.

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

(6) 10For 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, on any
of the grounds falling within section 18 on which a warrant under
Chapter 1 of this Part may be necessary, and

(b) 15its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (e) of subsection (3) above.

(7) Where an item subject to legal privilege intercepted in accordance with a
targeted interception warrant or mutual assistance warrant is retained
following its examination, the person to whom the warrant is addressed must
20inform the Investigatory Powers Commissioner as soon as is reasonably
practicable.

(8) Subsection (9) applies if—

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

(b) 25a copy of any such material has been given to any overseas authorities.

(9) To the extent that the requirements of subsections (2) and (5) relate to any of
the material mentioned in subsection (8)(a), or to the copy mentioned in
subsection (8)(b), the arrangements made for the purposes of this section are
not required to secure that those requirements are met (see instead section 47).

(10) 30In this section—

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

    (a)

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

    (b)

    35any record which—

    (i)

    refers to any interception or to the obtaining of any
    material, and

    (ii)

    is a record of the identities of the persons to or by whom
    the material was sent, or to whom the material relates,

    40and “copied” is to be read accordingly;

  • “the issuing authority” means—

    (a)

    the Secretary of State, in the case of warrants issued by the
    Secretary of State;

    (b)

    the Scottish Ministers, in the case of warrants issued by the
    45Scottish Ministers;

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

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47 Safeguards relating to disclosure of material overseas

(1) The issuing authority must ensure, in relation to every targeted interception
warrant or mutual assistance warrant issued by that authority, that
arrangements are in force for securing that—

(a) 5any 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) The requirements of this subsection are met in the case of a warrant if it appears
10to the issuing authority—

(a) that requirements corresponding to the requirements of section 46(2)
and (5) (“the relevant requirements”) will apply, to such extent (if any)
as the issuing authority considers appropriate, in relation to any of the
material which is handed over, or any copy of which is given, to the
15authorities in question, and

(b) that restrictions are in force which would prevent, to such extent (if
any) as the issuing authority considers appropriate, the doing of
anything in, for the purposes of or in connection with any proceedings
outside the United Kingdom which would result in a prohibited
20disclosure.

(3) In subsection (2)(b) “prohibited disclosure” means a disclosure which, if made
in the United Kingdom, would breach the prohibition in section 48(1).

(4) In this section—

  • “copy” has the same meaning as in section 46;

  • 25“the issuing authority” means—

    (a)

    the Secretary of State, in the case of warrants issued by the
    Secretary of State;

    (b)

    the Scottish Ministers, in the case of warrants issued by the
    Scottish Ministers;

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

48 Exclusion of matters from legal proceedings

(1) No evidence may be adduced, question asked, assertion or disclosure made or
other thing done in, for the purposes of or in connection with any legal
35proceedings or Inquiries Act proceedings which (in any manner)—

(a) discloses, in circumstances from which its origin in interception-related
conduct may be inferred—

(i) any content of an intercepted communication, or

(ii) any secondary data obtained from a communication, or

(b) 40tends to suggest that any interception-related conduct has or may have
occurred or may be going to occur.

This is subject to Schedule 3 (exceptions).

(2) “Interception-related conduct” means—

(a) conduct by a person within subsection (3) that is, or in the absence of
45any lawful authority would be, an offence under section 2(1) (offence of
unlawful interception);

Investigatory Powers BillPage 38

(b) a breach of the prohibition imposed by section 7 (restriction on
requesting interception by overseas authorities);

(c) a breach of the prohibition imposed by section 8 (restriction on
requesting assistance under mutual assistance agreements etc.);

(d) 5the making of an application by any person for a warrant, or the issue
of a warrant, under Chapter 1 of this Part;

(e) the imposition of any requirement on any person to provide assistance
in giving effect to a targeted interception warrant or mutual assistance
warrant.

(3) 10The persons referred to in subsection (2)(a) are—

(a) any person who is an intercepting authority (see section 16);

(b) any person holding office under the Crown;

(c) any person deemed to be the proper officer of Revenue and Customs by
virtue of section 8(2) of the Customs and Excise Management Act 1979;

(d) 15any person employed by, or for the purposes of, a police force;

(e) any postal operator or telecommunications operator;

(f) any person employed or engaged for the purposes of the business of a
postal operator or telecommunications operator.

(4) Any reference in subsection (1) to interception-related conduct also includes
20any conduct taking place before the coming into force of this section and
consisting of—

(a) conduct by a person within subsection (3) that—

(i) was an offence under section 1(1) or (2) of the Regulation of
Investigatory Powers Act 2000 (“RIPA”), or

(ii) 25would have been such an offence in the absence of any lawful
authority (within the meaning of section 1(5) of RIPA);

(b) conduct by a person within subsection (3) that—

(i) was an offence under section 1 of the Interception of
Communications Act 1985, or

(ii) 30would have been such an offence in the absence of subsections
(2) and (3) of that section;

(c) a breach by the Secretary of State of the duty under section 1(4) of RIPA
(restriction on requesting assistance under mutual assistance
agreements);

(d) 35the making of an application by any person for a warrant, or the issue
of a warrant, under—

(i) Chapter 1 of Part 1 of RIPA, or

(ii) the Interception of Communications Act 1985;

(e) the imposition of any requirement on any person to provide assistance
40in giving effect to a warrant under Chapter 1 of Part 1 of RIPA.

(5) In this section—

  • “Inquiries Act proceedings” means proceedings of an inquiry under the
    Inquiries Act 2005;

  • “intercepted communication” means any communication intercepted in
    45the course of its transmission by means of a postal service or
    telecommunication system.

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49 Duty not to make unauthorised disclosures

(1) A person to whom this section applies must not make an unauthorised
disclosure to another person.

(2) A person makes an unauthorised disclosure for the purposes of this section if—

(a) 5the person discloses any of the matters within subsection (4) in relation
to—

(i) a warrant under Chapter 1 of this Part, or

(ii) a warrant under Chapter 1 of Part 1 of the Regulation of
Investigatory Powers Act 2000, and

(b) 10the disclosure is not an excepted disclosure (see section 50).

(3) This section applies to the following persons—

(a) any person who is an intercepting authority (see section 16);

(b) any person holding office under the Crown;

(c) any person employed by, or for the purposes of, a police force;

(d) 15any postal operator or telecommunications operator;

(e) any person employed or engaged for the purposes of the business of a
postal operator or telecommunications operator;

(f) any person to whom any of the matters within subsection (4) have been
disclosed in relation to a warrant mentioned in subsection (2)(a).

(4) 20The matters referred to in subsection (2)(a) are—

(a) the existence or contents of the warrant;

(b) the details of the issue of the warrant or of any renewal or modification
of the warrant;

(c) the existence or contents of any requirement to provide assistance in
25giving effect to the warrant;

(d) the steps taken in pursuance of the warrant or of any such requirement;

(e) any of the material obtained under the warrant.

50 Section 49: meaning of “excepted disclosure”

(1) For the purposes of section 49 a disclosure made in relation to a warrant is an
30“excepted disclosure” if it falls within any of the Heads set out in—

(a) subsection (2) (disclosures authorised by warrant etc.);

(b) subsection (3) (oversight bodies);

(c) subsection (4) (legal advisers);

(d) subsection (7) (disclosures of a general nature).

(2) 35Head 1 is—

(a) a disclosure authorised by the warrant;

(b) a disclosure authorised by the person to whom the warrant is or was
addressed or under any arrangements made by that person for the
purposes of this section;

(c) 40a disclosure authorised by the terms of any requirement to provide
assistance in giving effect to the warrant (including any requirement
for disclosure imposed by virtue of section 34(5) or, in the case of a
warrant under Chapter 1 of Part 1 of the Regulation of Investigatory
Powers Act 2000 (“RIPA”), section 11(9) of RIPA).

(3) 45Head 2 is—