Investigatory Powers Bill (HC Bill 172)

Part 2 Lawful interception of communications

CHAPTER 1 Interception and examination with a warrant

Warrants under this Chapter

13 5Warrants that may be issued under this Chapter

(1) There are three kinds of warrant that may be issued under this Chapter—

(a) targeted interception warrants (see subsection (2)),

(b) targeted examination warrants (see subsection (3)), and

(c) mutual assistance warrants (see subsection (4)).

(2) 10A targeted interception warrant is a warrant which authorises or requires the
person to whom it is addressed to secure, by any conduct described in the
warrant, any one or more of the following—

(a) the interception, in the course of their transmission by means of a postal
service or telecommunication system, of communications described in
15the warrant;

(b) the obtaining of secondary data from communications transmitted by
means of a postal service or telecommunication system and described
in the warrant (see section 14);

(c) the disclosure, in any manner described in the warrant, of anything
20obtained under the warrant to the person to whom the warrant is
addressed or to any person acting on that person’s behalf.

(3) A targeted examination warrant is a warrant which authorises the person to
whom it is addressed to carry out the selection of relevant content for
examination, in breach of the prohibition in section 134(4) (prohibition on
25seeking to identify communications of individuals in the British Islands).

In this Part “relevant content”, in relation to a targeted examination warrant,
means any content of communications intercepted by an interception
authorised or required by a bulk interception warrant under Chapter 1 of Part
6.

(4) 30A mutual assistance warrant is a warrant which authorises or requires the
person to whom it is addressed to secure, by any conduct described in the
warrant, any one or more of the following—

(a) the making of a request, in accordance with an EU mutual assistance
instrument or an international mutual assistance agreement, for the
35provision of any assistance of a kind described in the warrant in
connection with, or in the form of, an interception of communications;

(b) the provision to the competent authorities of a country or territory
outside the United Kingdom, in accordance with such an instrument or
agreement, of any assistance of a kind described in the warrant in
40connection with, or in the form of, an interception of communications;

(c) the disclosure, in any manner described in the warrant, of anything
obtained under the warrant to the person to whom the warrant is
addressed or to any person acting on that person’s behalf.

(5) A targeted interception warrant or mutual assistance warrant also authorises
the following conduct (in addition to the conduct described in the warrant)—

(a) any conduct which it is necessary to undertake in order to do what is
expressly authorised or required by the warrant, including—

(i) 5the interception of communications not described in the
warrant, and

(ii) conduct for obtaining secondary data from such
communications;

(b) any conduct by any person which is conduct in pursuance of a
10requirement imposed by or on behalf of the person to whom the
warrant is addressed to be provided with assistance in giving effect to
the warrant;

(c) any conduct for obtaining related systems data from any postal
operator or telecommunications operator.

(6) 15For the purposes of subsection (5)(c)—

• “related systems data”, in relation to a warrant, means systems data
  relating to a relevant communication or to the sender or recipient, or
  intended recipient, of a relevant communication (whether or not a
  person), and

• 20“relevant communication”, in relation to a warrant, means—

  (a)

  any communication intercepted in accordance with the warrant
  in the course of its transmission by means of a postal service or
  telecommunication system, or

  (b)

  any communication from which secondary data is obtained
  25under the warrant.

(7) For provision enabling the combination of targeted interception warrants with
certain other warrants or authorisations (including targeted examination
warrants), see Schedule 8.

14 Obtaining secondary data

(1) 30This section has effect for the purposes of this Part.

(2) In relation to a communication transmitted by means of a postal service,
references to obtaining secondary data from the communication are references
to obtaining such data in the course of the transmission of the communication
(as to which, see section 3(7)).

(3) 35In relation to a communication transmitted by means of a telecommunication
system, references to obtaining secondary data from the communication are
references to obtaining such data—

(a) while the communication is being transmitted, or

(b) at any time when the communication is stored in or by the system
40(whether before or after its transmission).

(4) “Secondary data”—

(a) in relation to a communication transmitted by means of a postal
service, means any data falling within subsection (5);

(b) in relation to a communication transmitted by means of a
45telecommunication system, means any data falling within subsection
(5) or (6).

(5) The data falling within this subsection is systems data which is comprised in,
included as part of, attached to or logically associated with the communication
(whether by the sender or otherwise).

(6) The data falling within this subsection is identifying data which—

(a) 5is comprised in, included as part of, attached to or logically associated
with the communication (whether by the sender or otherwise),

(b) is capable of being logically separated from the remainder of the
communication, and

(c) if it were so separated, would not reveal anything of what might
10reasonably be considered to be the meaning (if any) of the
communication, disregarding any meaning arising from the fact of the
communication or from any data relating to the transmission of the
communication.

(7) For the meaning of “systems data” and “identifying data”, see section 225.

15 15Subject-matter of warrants

(1) A warrant under this Chapter may relate to—

(a) a particular person or organisation, or

(b) a single set of premises.

(2) In addition, a targeted interception warrant or targeted examination warrant
20may relate to—

(a) a group of persons who share a common purpose or who carry on, or
may carry on, a particular activity;

(b) more than one person or organisation, or more than one set of premises,
where the conduct authorised or required by the warrant is for the
25purposes of a single investigation or operation;

(c) testing or training activities.

(3) In subsection (2)(c) “testing or training activities” means—

(a) in relation to a targeted interception warrant—

(i) the testing, maintenance or development of apparatus, systems
30or other capabilities relating to the interception of
communications in the course of their transmission by means of
a telecommunication system or to the obtaining of secondary
data from communications transmitted by means of such a
system, or

(ii) 35the training of persons who carry out, or are likely to carry out,
such interception or the obtaining of such data;

(b) in relation to a targeted examination warrant—

(i) the testing, maintenance or development of apparatus, systems
or other capabilities relating to the selection of relevant content
40for examination, or

(ii) the training of persons who carry out, or are likely to carry out,
the selection of relevant content for examination.

Power to issue warrants

16 Persons who may apply for issue of a warrant

(1) Each of the following is an “intercepting authority” for the purposes of this
Part—

(a) 5a person who is the head of an intelligence service;

(b) the Director General of the National Crime Agency;

(c) the Commissioner of Police of the Metropolis;

(d) the Chief Constable of the Police Service of Northern Ireland;

(e) the chief constable of the Police Service of Scotland;

(f) 10the Commissioners for Her Majesty’s Revenue and Customs;

(g) the Chief of Defence Intelligence;

(h) a person who is the competent authority of a country or territory
outside the United Kingdom for the purposes of an EU mutual
assistance instrument or an international mutual assistance agreement.

(2) 15For the meaning of “head of an intelligence service”, see section 225.

(3) An application for the issue of a warrant under this Chapter may only be made
on behalf of an intercepting authority by a person holding office under the
Crown.

17 Power of Secretary of State to issue warrants

(1) 20The Secretary of State may, on an application made by or on behalf of an
intercepting authority mentioned in section 16(1)(a) to (g), issue a targeted
interception warrant if—

(a) the Secretary of State considers that the warrant is necessary on
grounds falling within section 18,

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

(c) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 46 and 47 (safeguards relating to disclosure
30etc.) are in force in relation to the warrant, and

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

This is subject to subsection (5).

(2) 35The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted examination warrant if—

(a) the Secretary of State considers that the warrant is necessary on
grounds falling within section 18,

(b) the Secretary of State considers that the conduct authorised by the
40warrant is proportionate to what is sought to be achieved by that
conduct,

(c) the Secretary of State considers that the warrant is or may be necessary
to authorise the selection of relevant content for examination in breach
of the prohibition in section 134(4) (prohibition on seeking to identify
45communications of individuals in the British Islands), and

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

This is subject to subsection (5).

(3) 5The Secretary of State may, on an application made by or on behalf of an
intercepting authority, issue a mutual assistance warrant if—

(a) the Secretary of State considers that the warrant is necessary on
grounds falling within section 18,

(b) the Secretary of State considers that the conduct authorised by the
10warrant is proportionate to what is sought to be achieved by that
conduct,

(c) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 46 and 47 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and

(d) 15except where the Secretary of State considers that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.

This is subject to subsection (5).

(4) The matters to be taken into account in considering whether the conditions in
20paragraphs (a) and (b) of subsection (1) or (as the case may be) subsection (3)
are met include whether the information which it is considered necessary to
obtain under the warrant could reasonably be obtained by other means.

(5) The Secretary of State may not issue a warrant under this section if—

(a) the application is a relevant Scottish application (see section 20), and

(b) 25in the case of an application for a targeted interception warrant or a
targeted examination warrant, the Secretary of State considers that the
warrant is necessary only for the purpose of preventing or detecting
serious crime.

For the power of the Scottish Ministers to issue warrants under this Chapter,
30see section 19.

(6) But subsection (5) does not prevent the Secretary of State from doing anything
under this section for the purposes specified in section 2(2) of the European
Communities Act 1972.

18 Grounds on which warrants may be issued by Secretary of State

(1) 35This section has effect for the purposes of this Part.

(2) A targeted interception warrant or targeted examination warrant is necessary
on grounds falling within this section if it is necessary—

(a) in the interests of national security,

(b) for the purpose of preventing or detecting serious crime, or

(c) 40in 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 (but see subsection (4)).

(3) A mutual assistance warrant is necessary on grounds falling within this section
if—

(a) 45it is necessary for the purpose of giving effect to the provisions of an EU
mutual assistance instrument or an international mutual assistance
agreement, and

(b) the circumstances appear to the Secretary of State to be equivalent to
those in which the Secretary of State would issue a warrant by virtue of
subsection (2)(b).

(4) A warrant may be considered necessary as mentioned in subsection (2)(c) only
5if the information which it is considered necessary to obtain is information
relating to the acts or intentions of persons outside the British Islands.

(5) A warrant may not be considered necessary on grounds falling within this
section if it is considered necessary only for the purpose of gathering evidence
for use in any legal proceedings.

19 10Power of Scottish Ministers to issue warrants

(1) The Scottish Ministers may, on an application made by or on behalf of an
intercepting authority mentioned in section 16(1)(a) to (g), issue a targeted
interception warrant if—

(a) the application is a relevant Scottish application (see section 20),

(b) 15the Scottish Ministers consider that the warrant is necessary on
grounds falling within subsection (4),

(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,

(d) 20the Scottish Ministers consider that satisfactory arrangements made for
the purposes of sections 46 and 47 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and

(e) except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
25approved by a Judicial Commissioner.

(2) The Scottish Ministers may, on an application made by or on behalf of the head
of an intelligence service, issue a targeted examination warrant if—

(a) the application is a relevant Scottish application,

(b) the Scottish Ministers consider that the warrant is necessary on
30grounds falling within subsection (4),

(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,

(d) the Scottish Ministers consider that the warrant is or may be necessary
35to authorise the selection of relevant content for examination in breach
of the prohibition in section 134(4) (prohibition on seeking to identify
communications of individuals in the British Islands), and

(e) except where the Scottish Ministers consider that there is an urgent
need to issue the warrant, the decision to issue the warrant has been
40approved by a Judicial Commissioner.

(3) The Scottish Ministers may, on an application made by or on behalf of an
intercepting authority, issue a mutual assistance warrant if—

(a) the application is a relevant Scottish application,

(b) the Scottish Ministers consider that the warrant is necessary on
45grounds falling within subsection (4),

(c) the Scottish Ministers consider that the conduct authorised by the
warrant is proportionate to what is sought to be achieved by that
conduct,

(d) the Scottish Ministers consider that satisfactory arrangements made for
the purposes of sections 46 and 47 (safeguards relating to disclosure
etc.) are in force in relation to the warrant, and

(e) except where the Scottish Ministers consider that there is an urgent
5need to issue the warrant, the decision to issue the warrant has been
approved by a Judicial Commissioner.

(4) A warrant is necessary on grounds falling within this subsection if—

(a) in the case of a targeted interception warrant or targeted examination
warrant, it is necessary for the purposes of preventing or detecting
10serious crime, and

(b) in the case of a mutual assistance warrant—

(i) it is necessary for the purpose of giving effect to the provisions
of an EU mutual assistance instrument or an international
mutual assistance agreement, and

(ii) 15the circumstances appear to the Scottish Ministers to be
equivalent to those in which the Scottish Ministers would issue
a warrant by virtue of paragraph (a).

(5) A warrant may not be considered necessary on grounds falling within
subsection (4) if it is considered necessary only for the purpose of gathering
20evidence for use in any legal proceedings.

(6) The matters to be taken into account in considering whether the conditions in
paragraphs (b) and (c) of subsection (1) or (as the case may be) subsection (3)
are met include whether the information which it is considered necessary to
obtain under the warrant could reasonably be obtained by other means.

20 25“Relevant Scottish applications”

(1) An application for the issue of a warrant under this Chapter is a “relevant
Scottish application” for the purposes of this Chapter if any of conditions A to
C is met.

In this section “the applicant” means the person by whom, or on whose behalf,
30the application is made.

(2) Condition A is that—

(a) the application is for the issue of a targeted interception warrant or a
targeted examination warrant, and

(b) the warrant, if issued, would relate to—

(i) 35a person who is in Scotland, or is reasonably believed by the
applicant to be in Scotland, at the time of the issue of the
warrant, or

(ii) premises which are in Scotland, or are reasonably believed by
the applicant to be in Scotland, at that time.

(3) 40Condition B is that—

(a) the application is for the issue of a mutual assistance warrant which, if
issued, would authorise or require—

(i) the making of a request falling within section 13(4)(a), or

(ii) the making of such a request and disclosure falling within
45section 13(4)(c), and

(b) the application—

(i) is made by, or on behalf of, the chief constable of the Police
Service of Scotland, or

(ii) is made by, or on behalf of, the Commissioners for Her
Majesty’s Revenue and Customs or the Director General of the
5National Crime Agency for the purpose of preventing or
detecting serious crime in Scotland.

(4) Condition C is that—

(a) the application is for the issue of a mutual assistance warrant which, if
issued, would authorise or require—

(i) 10the provision of assistance falling within section 13(4)(b), or

(ii) the provision of such assistance and disclosure falling within
section 13(4)(c), and

(b) the warrant, if issued, would relate to—

(i) a person who is in Scotland, or is reasonably believed by the
15applicant to be in Scotland, at the time of the issue of the
warrant, or

(ii) premises which are in Scotland, or are reasonably believed by
the applicant to be in Scotland, at that time.

Approval of warrants by Judicial Commissioners

21 20Approval of warrants by Judicial Commissioners

(1) In deciding whether to approve a person’s decision to issue a warrant under
this Chapter, a Judicial Commissioner must review the person’s conclusions as
to the following matters—

(a) whether the warrant is necessary on relevant grounds (see subsection
25(3)), and

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

(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) 30In subsection (1)(a) “relevant grounds” means—

(a) in the case of a decision of the Secretary of State to issue a warrant,
grounds falling within section 18;

(b) in the case of a decision of the Scottish Ministers to issue a warrant,
grounds falling within section 19(4).

(4) 35Where a Judicial Commissioner refuses to approve a person’s decision to issue
a warrant under this Chapter, the Judicial Commissioner must give the person
written reasons for the refusal.

(5) Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a person’s decision to issue a warrant under
40this Chapter, the person may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.

22 Approval of warrants issued in urgent cases

(1) This section applies where—

(a) a warrant under this Chapter is issued without the approval of a
Judicial Commissioner, and

(b) the person who decided to issue the warrant considered that there was
an urgent need to issue it.

(2) 5The person who decided to issue the warrant 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) notify the person of the Judicial Commissioner’s decision.

10“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 warrant,
the warrant—

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

(b) 15may not be renewed.

(5) Section 23 contains further provision about what happens if a Judicial
Commissioner refuses to approve the decision to issue a warrant.

23 Failure to approve warrant issued in urgent case

(1) This section applies where under section 22(3) a Judicial Commissioner refuses
20to approve the decision to issue a warrant.

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

(3) The Judicial Commissioner may—

(a) 25direct that any of the material obtained under the warrant is destroyed;

(b) impose conditions as to the use or retention of any of that material;

(c) in the case of a targeted examination warrant, impose conditions as to
the use of any relevant content selected for examination under the
warrant.

(4) 30The 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
35party (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 person who decided to issue the warrant;

(b) the person to whom the warrant was addressed.

(6) 40The person who decided to issue the warrant 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
may—

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

(b) make a fresh determination.

(8) Nothing in this section or section 22 affects the lawfulness of—

(a) anything done under the warrant before it ceases to have effect;

(b) 5if anything is in the process of being done under the warrant when it
ceases to have effect—

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

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

Additional safeguards

24 10Members of Parliament etc.

(1) This section applies where—

(a) an application is made to the Secretary of State for the issue of a
targeted interception warrant or a targeted examination warrant, and

(b) the purpose of the warrant is—

(i) 15in the case of a targeted interception warrant, to authorise or
require the interception of communications sent by, or intended
for, a person who is a member of a relevant legislature, or

(ii) in the case of a targeted examination warrant, to authorise the
selection for examination of the content of such
20communications.

(2) Before deciding whether to issue the warrant, the Secretary of State must
consult the Prime Minister.

(3) In this section “member of a relevant legislature” means—

(a) a member of either House of Parliament;

(b) 25a member of the Scottish Parliament;

(c) a member of the National Assembly for Wales;

(d) a member of the Northern Ireland Assembly;

(e) a member of the European Parliament elected for the United Kingdom.

25 Items subject to legal privilege

(1) 30Subsections (2) and (3) apply if—

(a) an application is made by or on behalf of an intercepting authority for
a warrant under this Chapter, and

(b) the purpose, or one of the purposes, of the warrant is—

(i) in the case of a targeted interception warrant or mutual
35assistance warrant, to authorise or require the interception of
items subject to legal privilege, or

(ii) in the case of a targeted examination warrant, to authorise the
selection of such items for examination.

(2) The application must contain a statement that the purpose, or one of the
40purposes, of the warrant is to authorise or require the interception, or (in the
case of a targeted examination warrant) the selection for examination, of items
subject to legal privilege.