Investigatory Powers Bill (HC Bill 2)

Part 1 General privacy protections

Overview of Act

1 Overview of Act

(1) 5This Part sets out offences and penalties in relation to—

(a) the unlawful interception of communications, and

(b) the unlawful obtaining of communications data.

(2) It also abolishes and restricts various general powers to obtain
communications data and restricts the circumstances in which equipment
10interference, and certain requests about the interception of communications,
can take place.

(3) Other protections for privacy—

(a) can be found, in particular, in the regimes provided for by Parts 2 to 7
and in the oversight arrangements in Part 8, and

(b) also exist by virtue of the Human Rights Act 1998 and elsewhere in the
law.

(4) The regimes provided for by Parts 2 to 7 are as follows—

(a) Part 2 and Chapter 1 of Part 6 set out circumstances in which the
5interception of communications is lawful and make further provision
about the interception of communications and the treatment of material
obtained in connection with it,

(b) Part 3 and Chapter 2 of Part 6 set out circumstances in which the
obtaining of communications data is lawful and make further provision
10about the obtaining and treatment of such data,

(c) Part 4 makes provision for the retention of certain communications
data,

(d) Part 5 and Chapter 3 of Part 6 deal with equipment interference
warrants, and

(e) 15Part 7 deals with bulk personal dataset warrants.

(5) As to the rest of the Act—

(a) Part 8 deals with oversight arrangements for regimes in this Act and
elsewhere, and

(b) Part 9 contains miscellaneous and general provisions including
20amendments to sections 3 and 5 of the Intelligence Services Act 1994
and provisions about national security and combined warrants and
authorisations.

Prohibitions against unlawful interception

2 Offence of unlawful interception

(1) 25A person commits an offence if—

(a) the person intentionally intercepts a communication in the course of its
transmission by means of—

(i) a public telecommunication system,

(ii) a private telecommunication system, or

(iii) 30a public postal service,

(b) the interception is carried out in the United Kingdom, and

(c) the person does not have lawful authority to carry out the interception.

(2) But it is not an offence under subsection (1) for a person to intercept a
communication in the course of its transmission by means of a private
35telecommunication system if the person—

(a) is a person with a right to control the operation or use of the system, or

(b) has the express or implied consent of such a person to carry out the
interception.

(3) Sections 3 and 4 contain provision about—

(a) 40the meaning of “interception”, and

(b) when interception is to be regarded as carried out in the United
Kingdom.

(4) Section 5 contains provision about when a person has lawful authority to carry
out an interception.

(5) For the meaning of the terms used in subsection (1)(a)(i) to (iii), see sections 223
and 224.

(6) A person who is guilty of an offence under subsection (1) is liable—

(a) on summary conviction in England and Wales, to a fine;

(b) 5on summary conviction in Scotland or Northern Ireland, to a fine not
exceeding the statutory maximum;

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

(7) No proceedings for any offence which is an offence by virtue of this section
10may be instituted—

(a) in England and Wales, except by or with the consent of the Director of
Public Prosecutions;

(b) in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.

3 15Definition of “interception” etc.

Interception in relation to telecommunication systems

(1) For the purposes of this Act, a person intercepts a communication in the course
of its transmission by means of a telecommunication system if, and only if—

(a) the person does a relevant act in relation to the system, and

(b) 20the effect of the relevant act is to make any content of the
communication available, at a relevant time, to a person who is not the
sender or intended recipient of the communication.

For the meaning of “content” in relation to a communication, see section 223(6).

(2) In this section “relevant act”, in relation to a telecommunication system,
25means—

(a) modifying, or interfering with, the system or its operation;

(b) monitoring transmissions made by means of the system;

(c) monitoring transmissions made by wireless telegraphy to or from
apparatus that is part of the system.

(3) 30For the purposes of this section references to modifying a telecommunication
system include references to attaching any apparatus to, or otherwise
modifying or interfering with—

(a) any part of the system, or

(b) any wireless telegraphy apparatus used for making transmissions to or
35from apparatus that is part of the system.

(4) In this section “relevant time”, in relation to a communication transmitted by
means of a telecommunication system, means—

(a) any time while the communication is being transmitted, and

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

(5) For the purposes of this section, the cases in which any content of a
communication is to be taken to be made available to a person at a relevant
time include any case in which any of the communication is diverted or
recorded at a relevant time so as to make any content of the communication
45available to a person after that time.

(6) In this section “wireless telegraphy” and “wireless telegraphy apparatus” have
the same meaning as in the Wireless Telegraphy Act 2006 (see sections 116 and
117 of that Act).

Interception in relation to postal services

(7) 5Section 125(3) of the Postal Services Act 2000 applies for the purposes of
determining for the purposes of this Act whether a postal item is in the course
of its transmission by means of a postal service as it applies for the purposes of
determining for the purposes of that Act whether a postal packet is in course
of transmission by post.

10Interception carried out in the United Kingdom

(8) For the purposes of this Act the interception of a communication is carried out
in the United Kingdom if, and only if—

(a) the relevant act or, in the case of a postal item, the interception is carried
out by conduct within the United Kingdom, and

(b) 15the communication is intercepted—

(i) in the course of its transmission by means of a public
telecommunication system or a public postal service, or

(ii) in the course of its transmission by means of a private
telecommunication system in a case where the sender or
20intended recipient of the communication is in the United
Kingdom.

4 Conduct that is not interception

(1) References in this Act to the interception of a communication do not include
references to the interception of any communication broadcast for general
25reception.

(2) References in this Act to the interception of a communication in the course of
its transmission by means of a postal service do not include references to—

(a) any conduct that takes place in relation only to so much of the
communication as consists of any postal data comprised in, included as
30part of, attached to, or logically associated with a communication
(whether by the sender or otherwise) for the purposes of any postal
service by means of which it is being or may be transmitted, or

(b) any conduct, in connection with conduct falling within paragraph (a),
that gives a person who is neither the sender nor the intended recipient
35only so much access to a communication as is necessary for the purpose
of identifying such postal data.

For the meaning of “postal data”, see section 224.

5 Definition of “lawful authority”

(1) For the purposes of this Act, a person has lawful authority to carry out an
40interception if, and only if—

(a) the interception is carried out in accordance with—

(i) a targeted interception warrant or mutual assistance warrant
under Chapter 1 of Part 2, or

(ii) a bulk interception warrant under Chapter 1 of Part 6,

(b) 45the interception is authorised by any of sections 37 to 45, or

(c) in the case of a communication stored in or by a telecommunication
system, the interception—

(i) is carried out in accordance with a targeted equipment
interference warrant under Part 5 or a bulk equipment
5interference warrant under Chapter 3 of Part 6,

(ii) is in the exercise of any statutory power that is exercised for the
purpose of obtaining information or taking possession of any
document or other property, or

(iii) is carried out in accordance with a court order made for that
10purpose.

(2) Conduct which has lawful authority for the purposes of this Act by virtue of
subsection (1)(a) or (b) is to be treated as lawful for all other purposes.

(3) Any other conduct which—

(a) is carried out in accordance with a warrant under Chapter 1 of Part 2 or
15a bulk interception warrant, or

(b) is authorised by any of sections 37 to 45,

is to be treated as lawful for all purposes.

6 Monetary penalties for certain unlawful interceptions

(1) The Investigatory Powers Commissioner may serve a monetary penalty notice
20on a person if conditions A and B are met.

(2) A monetary penalty notice is a notice requiring the person on whom it is served
to pay to the Investigatory Powers Commissioner (“the Commissioner”) a
monetary penalty of an amount determined by the Commissioner and
specified in the notice.

(3) 25Condition A is that the Commissioner considers that—

(a) the person has intercepted, in the United Kingdom, any
communication in the course of its transmission by means of a public
telecommunication system,

(b) the person did not have lawful authority to carry out the interception,
30and

(c) the person was not, at the time of the interception, making an attempt
to act in accordance with an interception warrant which might, in the
opinion of the Commissioner, explain the interception.

(4) Condition B is that the Commissioner does not consider that the person has
35committed an offence under section 2(1).

(5) The amount of a monetary penalty determined by the Commissioner under
this section must not exceed £50,000.

(6) Schedule 1 (which makes further provision about monetary penalty notices)
has effect.

(7) 40In this section “interception warrant” means—

(a) a targeted interception warrant or mutual assistance warrant under
Chapter 1 of Part 2, or

(b) a bulk interception warrant under Chapter 1 of Part 6.

(8) For the meaning of “interception” and other key expressions used in this
45section, see sections 3 to 5.

7 Restriction on requesting interception by overseas authorities

(1) This section applies to a request for any authorities of a country or territory
outside the United Kingdom to carry out the interception of communications
sent by, or intended for, an individual who the person making the request
5believes will be in the British Islands at the time of the interception.

(2) A request to which this section applies may not be made by or on behalf of a
person in the United Kingdom unless—

(a) a targeted interception warrant has been issued under Chapter 1 of Part
2 authorising the person to whom it is addressed to secure the
10interception of communications sent by, or intended for, that
individual, or

(b) a targeted examination warrant has been issued under that Chapter
authorising the person to whom it is addressed to carry out the
selection of the content of such communications for examination.

8 15Restriction on requesting assistance under mutual assistance agreements etc.

(1) This section applies to—

(a) a request for assistance under an EU mutual assistance instrument, and

(b) a request for assistance in accordance with an international mutual
assistance agreement.

(2) 20A request to which this section applies may not be made by or on behalf of a
person in the United Kingdom to the competent authorities of a country or
territory outside the United Kingdom unless a mutual assistance warrant has
been issued under Chapter 1 of Part 2 authorising the making of the request.

(3) In this section—

• 25“EU mutual assistance instrument” means an EU instrument which—

  (a)

  relates to the provision of mutual assistance in connection with,
  or in the form of, the interception of communications,

  (b)

  requires the issue of a warrant, order or equivalent instrument
  in cases in which assistance is given, and

  (c)

  30is designated as an EU mutual assistance instrument by
  regulations made by the Secretary of State;

• “international mutual assistance agreement” means an international
  agreement which—

  (a)

  relates to the provision of mutual assistance in connection with,
  35or in the form of, the interception of communications,

  (b)

  requires the issue of a warrant, order or equivalent instrument
  in cases in which assistance is given, and

  (c)

  is designated as an international mutual assistance agreement
  by regulations made by the Secretary of State.

40Prohibition against unlawful obtaining of communications data

9 Offence of unlawfully obtaining communications data

(1) A relevant person who, without lawful authority, knowingly or recklessly
obtains communications data from a telecommunications operator or a postal
operator is guilty of an offence.

(2) In this section “relevant person” means a person who holds an office, rank or
position with a relevant public authority (within the meaning of Part 3).

(3) Subsection (1) does not apply to a relevant person who shows that the person
acted in the reasonable belief that the person had lawful authority to obtain the
5communications data.

(4) A person guilty of an offence under this section is 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
10commencement 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) 15to 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) 20to 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.

Abolition of powers to obtain communications data

10 25Abolition or restriction of certain powers to obtain communications data

(1) Schedule 2 (which repeals certain information powers so far as they enable
public authorities to secure the disclosure by a telecommunications operator or
postal operator of communications data without the consent of the operator)
has effect.

(2) 30Any general information power which—

(a) would (apart from this subsection) enable a public authority to secure
the disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator, and

(b) does not involve a court order or other judicial authorisation or warrant
35and is not a regulatory power or a relevant postal power,

is to be read as not enabling the public authority to secure such a disclosure.

(3) A regulatory power or relevant postal power which enables a public authority
to secure the disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator may only be
40exercised by the public authority for that purpose if it is not possible for the
authority to use a power under this Act to secure the disclosure of the data.

(4) The Secretary of State may by regulations modify any enactment in
consequence of subsection (2).

(5) In this section “general information power” means—

(a) in relation to disclosure by a telecommunications operator, any power
to obtain information or documents (however expressed) which—

(i) is conferred by or under an enactment other than this Act or the
Regulation of Investigatory Powers Act 2000, and

(ii) 5does not deal (whether alone or with other matters) specifically
with telecommunications operators or any class of
telecommunications operators, and

(b) in relation to disclosure by a postal operator, any power to obtain
information or documents (however expressed) which—

(i) 10is conferred by or under an enactment other than this Act or the
Regulation of Investigatory Powers Act 2000, and

(ii) does not deal (whether alone or with other matters) specifically
with postal operators or any class of postal operators.

(6) In this section—

• 15“power” includes part of a power,

• “regulatory power” means any power to obtain information or
  documents (however expressed) which—

  (a)

  is conferred by or under an enactment other than this Act or the
  Regulation of Investigatory Powers Act 2000, and

  (b)

  20is exercisable for the purpose of regulatory functions,

• “relevant postal power” means any power to obtain information or
  documents (however expressed) which—

  (a)

  is conferred by or under an enactment other than this Act or the
  Regulation of Investigatory Powers Act 2000, and

  (b)

  25is exercisable in connection with the conveyance or expected
  conveyance of any postal item into or out of the United
  Kingdom,

and references to powers include duties (and references to enabling and
exercising are to be read as including references to requiring and performing).

30Restrictions on interference with equipment

11 Mandatory use of equipment interference warrants

(1) An intelligence service may not, for the purpose of obtaining communications,
private information or equipment data, engage in conduct which could be
authorised by an equipment interference warrant except under the authority of
35such a warrant if—

(a) the intelligence service considers that the conduct would (unless done
under lawful authority) constitute one or more offences under sections
1 to 3A of the Computer Misuse Act 1990 (computer misuse offences),
and

(b) 40there is a British Islands connection.

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

(a) any of the conduct would take place in the British Islands (regardless of
the location of the equipment which would, or may, be interfered with),

(b) the intelligence service believes that any of the equipment which
45would, or may, be interfered with would, or may, be in the British
Islands at some time while the interference is taking place, or

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

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

(ii) private information relating to an individual who is, or whom
5the intelligence service 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 private information falling within sub-
paragraph (i) or (ii).

(3) 10This section does not restrict the ability of the head of an intelligence service to
apply for an equipment interference warrant in cases where—

(a) the intelligence service does not consider that the conduct for which it
is seeking authorisation would (unless done under lawful authority)
constitute one or more offences under sections 1 to 3A of the Computer
15Misuse Act 1990, or

(b) there is no British Islands connection.

(4) In this section—

• “communications”, “private information” and “equipment data” have the
  same meaning as in Part 5 (see section 118);

• 20“equipment interference warrant” means—

  (a)

  a targeted equipment interference warrant under Part 5;

  (b)

  a bulk equipment interference warrant under Chapter 3 of Part
  6.

12 Restriction on use of section 93 of the Police Act 1997

(1) 25A person may not, for the purpose of obtaining communications, private
information or equipment data, make an application under section 93 of the
Police Act 1997 for authorisation to engage in conduct which could be
authorised by a targeted equipment interference warrant under Part 5 if the
applicant considers that the conduct would (unless done under lawful
30authority) constitute one or more offences under sections 1 to 3A of the
Computer Misuse Act 1990 (computer misuse offences).

(2) In this section, “communications”, “private information” and “equipment
data” have the same meaning as in Part 5 (see section 118).

Part 2 35Lawful interception of communications

CHAPTER 1 Interception and examination with a warrant

Warrants under this Chapter

13 Warrants that may be issued under this Chapter

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

(a) 40targeted interception warrants (see subsection (2)),