Investigatory Powers Bill (HC Bill 2)

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Duration, modification and cancellation of warrants

126 Duration of warrants

(1) A bulk interception warrant (unless already cancelled) ceases to have effect at
the end of the period of 6 months beginning with—

(a) 5the day on which the warrant was issued, or

(b) in the case of a warrant that has been renewed, the day after the day at
the end of which the warrant would have ceased to have effect if it had
not been renewed.

(2) For provision about the renewal of warrants, see section 127.

127 10Renewal of warrants

(1) If the renewal conditions are met, a bulk interception warrant may be renewed,
at any time before it would otherwise cease to have effect, by an instrument
issued by the Secretary of State.

This is subject to subsection (5).

(2) 15The renewal conditions are—

(a) that the Secretary of State considers that the warrant continues to be
necessary—

(i) in the interests of national security, or

(ii) on that ground and on any other grounds falling within section
20121(2),

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

(c) that the Secretary of State considers that—

(i) 25each 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 continues to be, or
may be, necessary, and

(ii) the examination of intercepted content or secondary data for
30each such purpose continues to be necessary on any of the
grounds on which the Secretary of State considers that the
warrant continues to be necessary, and

(d) that the decision to renew the warrant has been approved by a Judicial
Commissioner.

(3) 35The decision to renew a bulk interception warrant must be taken personally by
the Secretary of State, and the instrument renewing the warrant must be signed
by the Secretary of State.

(4) Section 123 (approval of warrants by Judicial Commissioners) applies in
relation to a decision to renew a bulk interception warrant as it applies in
40relation to a decision to issue a bulk interception warrant.

This is subject to subsection (5).

(5) In the case of the renewal of a bulk interception warrant that has been modified
so that it no longer authorises or requires the interception of communications
or the obtaining of secondary data—

(a) 45the renewal condition in subsection (2)(a) is to be disregarded,

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(b) the reference in subsection (2)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary is to be read as
a reference to any grounds falling within section 121(1)(b) or (2), and

(c) section 123 has effect as if—

(i) 5paragraph (a) of subsection (1) were omitted, and

(ii) the reference in subsection (1)(c)(ii) to the grounds on which the
Secretary of State considers the warrant to be necessary were a
reference to any grounds falling within section 121(1)(b) or (2).

128 Modification of warrants

(1) 10The provisions of a bulk interception warrant may be modified at any time by
an instrument issued by the person making the modification.

(2) The only modifications that may be made under this section are—

(a) adding, varying or removing any operational purpose specified in the
warrant as a purpose for which any intercepted content or secondary
15data obtained under the warrant may be selected for examination, and

(b) providing that the warrant no longer authorises or requires (to the
extent that it did so previously)—

(i) the interception of any communications in the course of their
transmission by means of a telecommunication system, or

(ii) 20the obtaining of any secondary data from communications
transmitted by means of such a system.

(3) In this section—

(a) a modification adding or varying any operational purpose as
mentioned in paragraph (a) of subsection (2) is referred to as a “major
25modification”, and

(b) any other modification within that subsection is referred to as a “minor
modification”.

(4) A major modification—

(a) must be made by the Secretary of State, and

(b) 30may be made only if the Secretary of State considers that it is necessary
on any of the grounds on which the Secretary of State considers the
warrant to be necessary (see section 121(1)(b)).

(5) Except where the Secretary of State considers that there is an urgent need to
make the modification, a major modification has effect only if the decision to
35make the modification is approved by a Judicial Commissioner.

(6) Section 123 (approval of warrants by Judicial Commissioners) applies in
relation to a decision to make a major modification of a bulk interception
warrant as it applies in relation to the decision to issue a bulk interception
warrant.

40Section 129 contains provision about the approval of major modifications made
in urgent cases.

(7) A minor modification may be made by—

(a) the Secretary of State, or

(b) a senior official acting on behalf of the Secretary of State.

(8) 45Where a minor modification is made by a senior official, the Secretary of State
must be notified personally of the modification and the reasons for making it.

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(9) If at any time a person mentioned in subsection (7) considers that any
operational purpose specified in a warrant is no longer a purpose for which the
examination of intercepted content or secondary data obtained under the
warrant is or may be necessary, the person must modify the warrant by
5removing that operational purpose.

(10) The decision to modify the provisions of a warrant must be taken personally
by the person making the modification, and the instrument making the
modification must be signed by that person.

This is subject to subsection (11).

(11) 10If it is not reasonably practicable for an instrument making a major
modification to be signed by the Secretary of State, the instrument may be
signed by a senior official designated by the Secretary of State for that purpose.

(12) In such a case, the instrument making the modification must contain a
statement that—

(a) 15it is not reasonably practicable for the instrument to be signed by the
Secretary of State, and

(b) the Secretary of State has personally and expressly authorised the
making of the modification.

(13) Despite section 119(2), the modification of a bulk interception warrant as
20mentioned in subsection (2)(b) above does not prevent the warrant from being
a bulk interception warrant.

(14) Nothing in this section applies in relation to modifying the provisions of a
warrant in a way which does not affect the conduct authorised or required by
it.

129 25Approval of major modifications made in urgent cases

(1) This section applies where—

(a) the Secretary of State makes a major modification of a bulk interception
warrant without the approval of a Judicial Commissioner, and

(b) the Secretary of State considered that there was an urgent need to make
30the modification.

(2) The Secretary of State must inform a Judicial Commissioner that the
modification has been made.

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

(a) decide whether to approve the decision to make the modification, and

(b) 35notify the Secretary of State of the Judicial Commissioner’s decision.

“The relevant period” means the period ending with the fifth working day after
the day on which the modification was made.

(4) If the Judicial Commissioner refuses to approve the decision to make the
modification—

(a) 40the warrant (unless it no longer has effect) has effect as if the
modification had not been made, and

(b) the person to whom the warrant is addressed must, so far as is
reasonably practicable, secure that anything in the process of being
done under the warrant by virtue of that modification stops as soon as
45possible.

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(5) Nothing in this section affects the lawfulness of—

(a) anything done under the warrant by virtue of the modification before
the modification ceases to have effect;

(b) if anything is in the process of being done under the warrant by virtue
5of the modification when the modification 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.

130 Cancellation of warrants

(1) The Secretary of State, or a senior official acting on behalf of the Secretary of
10State, may cancel a bulk interception warrant at any time.

(2) If the Secretary of State, or a senior official acting on behalf of the Secretary of
State, considers that any of the cancellation conditions are met in relation to a
bulk interception warrant, the person must cancel the warrant.

(3) The cancellation conditions are—

(a) 15that the warrant is no longer necessary in the interests of national
security;

(b) that the conduct authorised by the warrant is no longer proportionate
to what is sought to be achieved by that conduct;

(c) that the examination of intercepted content or secondary data obtained
20under the warrant is no longer necessary for any of the specified
operational purposes (see section 125).

(4) But the condition in subsection (3)(a) does not apply where the warrant has
been modified so that it no longer authorises or requires the interception of
communications or the obtaining of secondary data.

(5) 25Where a warrant is cancelled under this section, 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.

(6) A warrant that has been cancelled under this section may not be renewed.

30Implementation of warrants

131 Implementation of warrants

(1) In giving effect to a bulk interception warrant, the person to whom it is
addressed (“the implementing authority”) may (in addition to acting alone) act
through, or together with, such other persons as the implementing authority
35may require (whether under subsection (2) or otherwise) to provide the
authority with assistance in giving effect to the warrant.

(2) For the purpose of requiring any person to provide assistance in relation to a
bulk interception warrant, the implementing authority may—

(a) serve a copy of the warrant on any person who the implementing
40authority considers may be able to provide such assistance, or

(b) make arrangements for the service of a copy of the warrant on any such
person.

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(3) A copy of a warrant may be served under subsection (2) on a person outside
the United Kingdom for the purpose of requiring the person to provide such
assistance in the form of conduct outside the United Kingdom.

(4) For the purposes of this Act, the provision of assistance in giving effect to a
5bulk interception warrant includes any disclosure to the implementing
authority, or to persons acting on behalf of the implementing authority, of
anything obtained under the warrant.

(5) Sections 35 (service of warrants outside the United Kingdom) and 36 (duty of
operators to assist with implementation) apply in relation to a bulk
10interception warrant as they apply in relation to a targeted interception
warrant.

(6) References in this section (and in sections 35 and 36 as they apply in relation to
bulk interception 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
15with 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.

132 Safeguards relating to retention and disclosure of material

(1) 20The Secretary of State must ensure, in relation to every bulk interception
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 134 are met in relation to the
25intercepted content or secondary data obtained under the warrant.

This is subject to subsection (8).

(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
necessary for the authorised purposes (see subsection (3))—

(a) 30the 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) the extent to which any of the material is copied;

(d) 35the number of copies that are made.

(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 in the interests of national security
or on any other grounds falling within section 121(2),

(b) 40it is necessary for facilitating the carrying out of any functions under
this 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 the Investigatory Powers Tribunal under or
45in relation to this Act,

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(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
required 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
5by the Public Records Act 1958 or the Public Records Act (Northern
Ireland) 1923.

(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
10copy 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 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
15retaining 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
interests of national security or on any other grounds falling within
20section 121(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) any material obtained under the warrant has been handed over to any
25overseas 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
subsection (7)(b), the arrangements made for the purposes of this section are
30not required to secure that those requirements are met (see instead section 133).

(9) In 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
    35the material as having been obtained under the warrant, and

    (b)

    any 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
    40the material was sent, or to whom the material relates,

    and “copied” is to be read accordingly;

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

133 Safeguards relating to disclosure of material overseas

(1) 45The Secretary of State must ensure, in relation to every bulk interception
warrant, that arrangements are in force for securing that—

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(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) 5The requirements of this subsection are met in the case of a warrant if it appears
to the Secretary of State—

(a) that requirements corresponding to the requirements of section 132(2)
and (5) will apply, to such extent (if any) as the Secretary of State
considers appropriate, in relation to any of the material which is
10handed over, or any copy of which is given, to the authorities in
question, and

(b) that restrictions are in force which would prevent, to such extent (if
any) as the Secretary of State considers appropriate, the doing of
anything in, for the purposes of or in connection with any proceedings
15outside the United Kingdom which would result in a prohibited
disclosure.

(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) (see
section 136).

(4) 20In this section—

  • “copy” has the same meaning as in section 132;

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

134 Safeguards relating to examination of material

(1) 25For the purposes of section 132 the requirements of this section are met in
relation to the intercepted content and secondary data obtained under a
warrant if—

(a) the selection of any of the intercepted content or secondary data for
examination is carried out only for the specified purposes (see
30subsection (2)),

(b) the selection of any of the intercepted content or secondary data for
examination is necessary and proportionate in all the circumstances,
and

(c) the selection of any of the intercepted content for examination meets
35any of the selection conditions (see subsection (3)).

(2) The selection of intercepted content or secondary data for examination is
carried out only for the specified purposes if the intercepted content or
secondary data is selected for examination only so far as is necessary for the
operational purposes specified in the warrant in accordance with section 125.

40In this subsection “specified in the warrant” means specified in the warrant at
the time of the selection of the intercepted content or secondary data for
examination.

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

(a) that the selection of the intercepted content for examination does not
45breach the prohibition in subsection (4);

(b) that the person to whom the warrant is addressed considers that the
selection of the intercepted content for examination would not breach
that prohibition;

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

(d) that the selection of the intercepted content for examination in breach
of that prohibition is authorised by a targeted examination warrant
5issued under Chapter 1 of Part 2.

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

(a) any criteria used for the selection of the intercepted content for
examination are referable to an individual known to be in the British
10Islands at that time, and

(b) the purpose of using those criteria is to identify the content of
communications sent by, or intended for, that individual.

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

(5) 15The selection of intercepted content (“the relevant content”) for examination is
authorised by this subsection if—

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

(b) 20at 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
the relevant content for examination would breach the prohibition in
subsection (4),

(c) 25since that time, a written authorisation to examine the relevant content
using those criteria has been given by a senior officer, and

(d) the selection of the relevant content 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
30circumstances in relation to an individual if—

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

(b) a 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)—

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

    (a)

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

    (b)

    40holds a position in the intelligence service of equivalent
    seniority to such a member;

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

(8) In a case where the selection of intercepted content for examination is
45authorised by subsection (5), the person to whom the warrant is addressed
must notify the Secretary of State that the selection is being carried out.

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135 Additional safeguards for items subject to legal privilege

(1) Subsection (2) applies if, in a case where intercepted content obtained under a
bulk interception warrant is to be selected for examination—

(a) the selection of the intercepted content for examination meets any of
5the selection conditions in section 134(3)(a) to (c), and

(b) either—

(i) the purpose, or one of the purposes, of using the criteria to be
used for the selection of the intercepted content for examination
(“the relevant criteria”) is to identify any items subject to legal
10privilege, or

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

(2) The intercepted content 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) 15A senior official may give an approval under subsection (2) only if—

(a) the official considers that the arrangements made for the purposes of
section 132 (safeguards relating to retention and disclosure of material)
include specific arrangements for the handling, retention, use and
destruction of items subject to legal privilege, and

(b) 20where subsection (1)(b)(i) applies, the official considers that there are
exceptional and compelling circumstances that make it necessary to
authorise the use of the relevant criteria.

(4) Where an item subject to legal privilege intercepted in accordance with a bulk
interception warrant is retained following its examination, the person to whom
25the warrant is addressed must inform the Investigatory Powers Commissioner
as soon as is reasonably practicable.

(For provision about the grounds for retaining material obtained under a
warrant, see section 132.)

136 Application of other restrictions in relation to warrants

(1) 30Section 48 and Schedule 3 (exclusion of matters from legal proceedings) apply
in relation to bulk interception warrants as they apply in relation to targeted
interception warrants.

(2) Sections 49 to 51 (duty not to make unauthorised disclosures) apply in relation
to bulk interception warrants as they apply in relation to targeted interception
35warrants, but as if the reference in section 50(2)(c) to a requirement for
disclosure imposed by virtue of section 34(5) were a reference to such a
requirement imposed by virtue of section 131(4).

Interpretation

137 Chapter 1: interpretation

(1) 40In this Chapter—

  • “intercepted content”, in relation to a bulk interception warrant, means
    any content of communications intercepted by an interception
    authorised or required by the warrant;

  • “overseas-related communications” has the meaning given by section 119;

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  • “secondary data” has the meaning given by section 120, and references to
    obtaining secondary data from a communication are to be read in
    accordance with that section;

  • “senior official” means a member of the Senior Civil Service or a member
    5of the Senior Management Structure of Her Majesty’s Diplomatic
    Service;

  • “the specified operational purposes” has the meaning given by section
    125(6).

(2) See also—

  • 10section 223 (telecommunications definitions),

  • section 225 (general definitions),

  • section 226 (index of defined expressions).

CHAPTER 2 Bulk acquisition warrants

Bulk acquisition warrants

138 15Power to issue bulk acquisition 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 acquisition warrant if—

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

(i) in the interests of national security, or

(ii) 20on that ground and on any other grounds falling within
subsection (2),

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

(c) 25the Secretary of State considers that—

(i) each of the specified operational purposes (see section 141) is a
purpose for which the examination of communications data
obtained under the warrant is or may be necessary, and

(ii) the examination of such data for each such purpose is necessary
30on any of the grounds on which the Secretary of State considers
the warrant to be necessary,

(d) the Secretary of State considers that satisfactory arrangements made for
the purposes of section 150 (safeguards relating to the retention and
disclosure of data) are in force in relation to the warrant, and

(e) 35the decision to issue the warrant has been approved by a Judicial
Commissioner.

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) 40for 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)).