Investigatory Powers Bill (HC Bill 2)

(3) For 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 on any relevant grounds (see
subsection (7)),

(b) 5it 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) it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or of the Investigatory Powers Tribunal under
10or in relation to this Act,

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

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

(4) The arrangements for the time being in force under this section for securing
15that 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
secure manner.

(5) The requirements of this subsection are met in relation to the material obtained
20under 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 grounds for retaining it
(see subsection (6)).

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

(a) 25its retention is not necessary, or not likely to become necessary, on any
relevant grounds (see subsection (7)), and

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

(7) In subsections (3) and (6), “relevant grounds” means—

(a) 30in relation to a warrant issued under section 91, grounds falling within
section 91(5);

(b) in relation to a warrant issued under section 92, the purpose of
preventing or detecting serious crime;

(c) in relation to a warrant issued under section 93, the interests of national
35security;

(d) in the case of a warrant issued under section 96(1), the purpose
mentioned in section 96(1)(a);

(e) in the case of a warrant issued under section 96(2), the purpose
mentioned in section 96(2)(a).

(8) 40Where an item subject to legal privilege is retained following its examination
under a warrant issued under this Part, the person retaining it must inform the
Investigatory Powers Commissioner as soon as is reasonably practicable.

(9) Subsection (10) applies if—

(a) any material obtained under the warrant has been handed over to any
45overseas authorities, or

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

(10) To the extent that the requirements of subsections (2) and (5) relate to any of
the material mentioned in subsection (9)(a), or to the copy mentioned in

subsection (9)(b), the arrangements made for the purpose of this section are not
required to secure that those requirements are met (see instead section 113).

(11) In this section—

• “copy”, in relation to material obtained under a warrant, means any of the
  5following (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)

  any record which is a record of the identities of persons who
  owned, used or were in possession of the equipment which was
  10interfered with to obtain that material,

  and “copied” is to be read accordingly;

• “the issuing authority” means—

  (a)

  in the case of a warrant issued under section 91 or 93, the
  Secretary of State;

  (b)

  15in the case of a warrant issued under section 92, the Scottish
  Ministers;

  (c)

  in the case of a warrant issued under section 96, the law
  enforcement chief who issued the warrant (or on whose behalf
  it was issued);

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

113 Safeguards relating to disclosure of material overseas

(1) The issuing authority must ensure, in relation to every targeted equipment
interference warrant, that arrangements are in force for securing that—

(a) 25any 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
30to the issuing authority that requirements corresponding to the requirements
of section 112(2) and (5) 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 authorities in question.

(3) In this section—

• 35“copy” has the same meaning as in section 112;

• “issuing authority” also has the same meaning as in that section;

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

114 Duty not to make unauthorised disclosures

(1) 40A 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) the person discloses any of the matters within subsection (4) in relation
to a warrant under this Part, and

(b) 45the disclosure is not an excepted disclosure (see section 115).

(3) This section applies to the following persons—

(a) any person who may apply for a warrant under this Part;

(b) any person holding office under the Crown;

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

(d) 5any telecommunications operator;

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

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

(4) 10The 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
15giving 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 in a form which
identifies it as having been obtained under a warrant under this Part.

115 Section 114: meaning of “excepted disclosure”

(1) 20For the purposes of section 114, a disclosure made in relation to a warrant is an
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 proceedings);

(d) 25subsection (6) (disclosures of a general nature).

(2) Head 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
30purposes of this section;

(c) a 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 109(4)).

(3) Head 2 is—

(a) 35a disclosure made to, or authorised by, a Judicial Commissioner;

(b) a disclosure made to the Independent Police Complaints Commission
for the purposes of facilitating the carrying out of any of its functions.

(4) Head 3 is—

(a) a disclosure made—

(i) 40in contemplation of, or in connection with, any legal
proceedings, and

(ii) for the purposes of those proceedings;

(b) a disclosure made—

(i) by a professional legal adviser (“L”) to L’s client or a
45representative of L’s client, or

(ii) by L’s client, or by a representative of L’s client, to L,

in connection with the giving, by L to L’s client, of advice about the
effect of the provisions of this Part.

(5) But a disclosure within Head 3 is not an excepted disclosure if it is made with
a view to furthering any criminal purpose.

(6) 5Head 4 is—

(a) a disclosure which—

(i) is made by a telecommunications operator in accordance with a
requirement imposed by regulations made by the Secretary of
State, and

(ii) 10relates to the number of warrants under this Part to which the
operator has given effect or has been involved in giving effect;

(b) a disclosure of information that does not relate to any particular
warrant under this Part but relates to such warrants in general.

116 Offence of making unauthorised disclosure

(1) 15A person commits an offence if—

(a) the person discloses any matter in breach of section 114(1), and

(b) the person knew that the disclosure was in breach of that section.

(2) A person who is guilty of an offence under this section is liable—

(a) on summary conviction in England and Wales—

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

(ii) to a fine,

25or to both;

(b) on summary conviction in Scotland—

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

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

or to both;

(c) 30on summary conviction in Northern Ireland—

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

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

or to both;

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

(3) In proceedings against any person for an offence under this section in respect
of any disclosure, it is a defence for the person to show that the person could
not reasonably have been expected, after first becoming aware of the matter
disclosed, to take steps to prevent the disclosure.

117 40Restriction on issue of warrants to certain law enforcement officers

(1) A law enforcement chief specified in subsection (2) may not issue a targeted
equipment interference warrant under section 96 unless the law enforcement
chief considers that there is a British Islands connection.

(2) The law enforcement chiefs specified in this subsection are—

(a) the Chief Constable of a police force maintained under section 2 of the
Police Act 1996;

(b) the Commissioner, or an Assistant Commissioner, of the metropolitan
police force;

(c) 5the Commissioner of Police for the City of London;

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

(e) the Chief Constable or a Deputy Chief Constable of the Police Service
of Northern Ireland;

(f) the Chief Constable of the British Transport Police;

(g) 10the Chief Constable of the Ministry for Defence Police;

(h) the Police Investigations and Review Commissioner.

(3) The Director General of the National Crime Agency may not issue a targeted
equipment interference warrant on the application of a member of a
collaborative police force unless the Director General considers that there is a
15British Islands connection

“Collaborative police force” has the meaning given by paragraph 2 of Part 3 of
Schedule 6.

(4) For the purpose of this section, there is a British Islands connection if—

(a) any of the conduct authorised by the warrant would take place in the
20British Islands (regardless of the location of the equipment that would,
or may, be interfered with),

(b) any of the equipment which would, or may, be interfered with would,
or may, be in the British Islands at some time while the interference is
taking place, or

(c) 25a purpose of the interference is to obtain—

(i) communications sent by, or to, a person who is, or whom the
law enforcement officer believes to be, for the time being in the
British Islands,

(ii) information relating to an individual who is, or whom the law
30enforcement officer believes to be, for the time being in the
British Islands, or

(iii) equipment data which forms part of, or is connected with,
communications or information falling within sub-paragraph
(i) or (ii).

(5) 35Except as provided by subsections (1) to (3), a targeted equipment interference
warrant may be issued under section 96 whether or not the person who has
power to issue the warrant considers that there is a British Islands connection.

118 Part 5: interpretation

(1) In this Part—

• 40“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
  persons, between a person and a thing or between things or for
  45the 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;

Investigatory Powers BillPage 95

• “equipment data” has the meaning given by section 89;

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

• “protected material”, in relation to a targeted examination warrant, has
  5the meaning given by section 88(9);

• “senior official” means—

  (a)

  in the case of a targeted equipment interference warrant which
  is or may be issued by the Secretary of State or a law
  enforcement chief, or in the case of a targeted examination
  10warrant which is or may be issued by the Secretary of State, a
  member of the Senior Civil Service or a member of the Senior
  Management Structure of Her Majesty’s Diplomatic Service;

  (b)

  in the case of a targeted equipment interference warrant or a
  targeted examination warrant which is or may be issued by the
  15Scottish Ministers, a member of the staff of the Scottish
  Administration who is a member of the Senior Civil Service;

• “targeted examination warrant” has the meaning given by section 88(9).

(2) See also—

• section 223 (telecommunications definitions),

• 20section 225 (general definitions),

• section 226 (index of defined expressions).

Part 6 Bulk warrants

CHAPTER 1 Bulk interception warrants

25Bulk interception warrants

119 Bulk interception warrants

(1) For the purposes of this Act a “bulk interception warrant” is a warrant issued
under this Chapter which meets conditions A and B.

(2) Condition A is that the main purpose of the warrant is one or more of the
30following—

(a) the interception of overseas-related communications (see subsection
(3));

(b) the obtaining of secondary data from such communications (see section
120).

(3) 35In this Chapter “overseas-related communications” means—

(a) communications sent by individuals who are outside the British
Islands, or

(b) communications received by individuals who are outside the British
Islands.

(4) 40Condition B is that the warrant 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 activities—

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

(b) the obtaining of secondary data from communications transmitted by
5means of such a system and described in the warrant;

(c) the selection for examination, in any manner described in the warrant,
of intercepted content or secondary data obtained under the warrant;

(d) the disclosure, in any manner described in the warrant, of anything
obtained under the warrant to the person to whom the warrant is
10addressed or to any person acting on that person’s behalf.

(5) A bulk interception 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) 15the interception of communications not described in the
warrant, and

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

(b) conduct by any person which is conduct in pursuance of a requirement
20imposed 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
telecommunications operator.

(6) 25For 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

• 30“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
  telecommunication system, or

  (b)

  any communication from which secondary data is obtained
  35under the warrant.

120 Obtaining secondary data

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

(2) References to obtaining secondary data from a communication transmitted by
means of a telecommunication system are references to obtaining such data—

(a) 40while the communication is being transmitted, or

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

and references to secondary data obtained under a bulk interception warrant
are to be read accordingly.

(3) 45“Secondary data”, in relation to a communication transmitted by means of a
telecommunication system, means any data falling within subsection (4) or (5).

(4) 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).

(5) 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.

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

121 15Power to issue bulk interception warrants

(1) The Secretary of State may, on an application made by or on behalf of the head
of an intelligence service, issue a bulk interception warrant if—

(a) the Secretary of State considers that the main purpose of the warrant is
one or more of the following—

(i) 20the interception of overseas-related communications, and

(ii) the obtaining of secondary data from such communications,

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

(i) in the interests of national security, or

(ii) on that ground and on any other grounds falling within
25subsection (2),

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

(d) the Secretary of State considers that—

(i) 30each of the specified operational purposes (see section 125) is a
purpose for which the examination of intercepted content or
secondary data obtained under the warrant is or may be
necessary, and

(ii) the examination of intercepted content or secondary data for
35each such purpose is necessary on any of the grounds on which
the Secretary of State considers the warrant to be necessary,

(e) the Secretary of State considers that satisfactory arrangements made for
the purposes of sections 132 and 133 (safeguards relating to disclosure
etc.) are in force in relation to the warrant,

(f) 40in a case where the Secretary of State considers that a
telecommunications operator outside the United Kingdom is likely to
be required to provide assistance in giving effect to the warrant if it is
issued, the Secretary of State has complied with section 122, and

(g) the decision to issue the warrant has been approved by a Judicial
45Commissioner.

For the meaning of “head of an intelligence service”, see section 225.

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

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

(b) 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 (but see subsection (3)).

(3) 5A warrant may be considered necessary on the ground falling within
subsection (2)(b) only if the information which it is considered necessary to
obtain is information relating to the acts or intentions of persons outside the
British Islands.

(4) A warrant may not be considered necessary in the interests of national security
10or on any other grounds falling within subsection (2) if it is considered
necessary only for the purpose of gathering evidence for use in any legal
proceedings.

(5) The matters to be taken into account in considering whether the conditions in
paragraphs (b) and (c) of subsection (1) are met include whether the
15information which it is considered necessary to obtain under the warrant could
reasonably be obtained by other means.

(6) An application for the issue of a bulk interception warrant may only be made
on behalf of the head of an intelligence service by a person holding office under
the Crown.

122 20Additional requirements in respect of warrants affecting overseas operators

(1) This section applies where—

(a) an application for a bulk interception warrant has been made, and

(b) the Secretary of State considers that a telecommunications operator
outside the United Kingdom is likely to be required to provide
25assistance in giving effect to the warrant if it is issued.

(2) Before issuing the warrant, the Secretary of State must consult the operator.

(3) Before issuing the warrant, the Secretary of State must, among other matters,
take into account—

(a) the likely benefits of the warrant,

(b) 30the likely number of users (if known) of any telecommunications
service which is provided by the operator and to which the warrant
relates,

(c) the technical feasibility of complying with any requirement that may be
imposed on the operator to provide assistance in giving effect to the
35warrant,

(d) the likely cost of complying with any such requirement, and

(e) any other effect of the warrant on the operator.

123 Approval of warrants by Judicial Commissioners

(1) In deciding whether to approve a decision to issue a warrant under section 121,
40a Judicial Commissioner must review the Secretary of State’s conclusions as to
the following matters—

(a) whether the warrant is necessary as mentioned in subsection (1)(b) of
that section,

(b) whether the conduct that would be authorised by the warrant is
45proportionate to what is sought to be achieved by that conduct,

(c) whether—

(i) each of the specified operational purposes (see section 125) is a
purpose for which the examination of intercepted content or
secondary data obtained under the warrant is or may be
5necessary, and

(ii) the examination of intercepted content or secondary data for
each such purpose is necessary as mentioned in section
121(1)(d)(ii), and

(d) any matters taken into account in accordance with section 122.

(2) 10In 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
warrant under section 121, the Judicial Commissioner must give the Secretary
of State written reasons for the refusal.

(4) 15Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to issue a warrant under section
121, the Secretary of State may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.

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

(1) 20The decision to issue a bulk interception warrant must be taken personally by
the Secretary of State.

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

125 Requirements that must be met by warrants

(1) 25A bulk interception warrant must contain a provision stating that it is a bulk
interception warrant.

(2) A bulk interception warrant must be addressed to the head of the intelligence
service by whom, or on whose behalf, the application for the warrant was
made.

(3) 30A bulk interception warrant must specify the operational purposes for which
any intercepted content or secondary data obtained under the warrant may be
selected for examination.

(4) In specifying any operational purposes, it is not sufficient simply to use the
descriptions contained in section 121(1)(b) or (2), but the purposes may still be
35general purposes.

(5) The warrant may, in particular, specify all of the operational purposes which,
at the time the warrant is issued, the person to whom it is addressed considers
are operational purposes for which intercepted content or secondary data
obtained under bulk interception warrants may be selected for examination.

(6) 40In this Chapter “the specified operational purposes”, in relation to a bulk
interception warrant, means the operational purposes specified in the warrant
in accordance with this section.