Investigatory Powers Bill (HL Bill 62)

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(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
make the modification is approved by a Judicial Commissioner.

(6) Section 132 (approval of warrants by Judicial Commissioners) applies in
5relation 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.

Section 138 contains provision about the approval of major modifications made
in urgent cases.

(7) 10A 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) Where 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.

(9) 15If 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
removing that operational purpose.

(10) 20The 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) If it is not reasonably practicable for an instrument making a major
25modification 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) it is not reasonably practicable for the instrument to be signed by the
30Secretary of State, and

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

(13) Despite section 128(2), the modification of a bulk interception warrant as
mentioned in subsection (2)(b) above does not prevent the warrant from being
35a 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.

138 Approval of major modifications made in urgent cases

(1) 40This 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
the modification.

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(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) 5notify 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) 10the 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
15possible.

(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
20of 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.

139 Cancellation of warrants

(1) The Secretary of State, or a senior official acting on behalf of the Secretary of
25State, 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) 30that 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
35under the warrant is no longer necessary for any of the specified
operational purposes (see section 134).

(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) 40Where 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.

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Implementation of warrants

140 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
5through, or together with, such other persons as the implementing authority
may 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) 10serve a copy of the warrant on any person who the implementing
authority 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.

(3) A copy of a warrant may be served under subsection (2) on a person outside
15the 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
bulk interception warrant includes any disclosure to the implementing
authority, or to persons acting on behalf of the implementing authority, of
20anything obtained under the warrant.

(5) Sections 40 (service of warrants) and 41 (duty of operators to assist with
implementation) apply in relation to a bulk interception warrant as they apply
in relation to a targeted interception warrant.

(6) References in this section (and in sections 40 and 41 as they apply in relation to
25bulk 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
with 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.

30Restrictions on use or disclosure of material obtained under warrants etc.

141 Safeguards relating to retention and disclosure of material

(1) The 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
35material obtained under the warrant, and

(b) that the requirements of section 143 are met in relation to the
intercepted 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
40under a warrant if each of the following is limited to the minimum that is
necessary for the authorised purposes (see subsection (3))—

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

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(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) the number of copies that are made.

(3) 5For 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 130(2),

(b) it is necessary for facilitating the carrying out of any functions under
10this 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
in relation to this Act,

(d) 15it 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
by the Public Records Act 1958 or the Public Records Act (Northern
20Ireland) 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
copy made of any of that material is stored, for so long as it is retained, in a
25secure manner.

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

(6) 30For 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
section 130(2), and

(b) 35its 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
overseas authorities, or

(b) 40a 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
not required to secure that those requirements are met (see instead section 142).

(9) 45In this section—

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

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    (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—

    (i)

    refers to any interception or to the obtaining of any
    5material, and

    (ii)

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

    and “copied” is to be read accordingly;

  • “overseas authorities” means authorities of a country or territory outside
    10the United Kingdom.

142 Safeguards relating to disclosure of material overseas

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

(a) any material obtained under the warrant is handed over to overseas
15authorities 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
to the Secretary of State—

(a) 20that requirements corresponding to the requirements of section 141(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
handed over, or any copy of which is given, to the authorities in
question, and

(b) 25that 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
outside the United Kingdom which would result in a prohibited
disclosure.

(3) 30In subsection (2)(b) “prohibited disclosure” means a disclosure which, if made
in the United Kingdom, would breach the prohibition in section 53(1) (see
section 145).

(4) In this section—

  • “copy” has the same meaning as in section 141;

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

143 Safeguards relating to examination of material

(1) For the purposes of section 141 the requirements of this section are met in
relation to the intercepted content and secondary data obtained under a
40warrant if—

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

(b) the selection of any of the intercepted content or secondary data for
45examination is necessary and proportionate in all the circumstances,
and

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(c) the selection of any of the intercepted content for examination meets
any 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
5secondary data is selected for examination only so far as is necessary for the
operational purposes specified in the warrant in accordance with section 134.

In 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) 10The selection conditions referred to in subsection (1)(c) are—

(a) that the selection of the intercepted content for examination does not
breach 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
15that prohibition;

(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
20issued 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
25Islands 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) 30The 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) 35at 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) 40since 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
45circumstances 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)—

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  • “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
    5Service, or

    (b)

    holds 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) 10In a case where the selection of intercepted content for examination is
authorised by subsection (5), the person to whom the warrant is addressed
must notify the Secretary of State that the selection is being carried out.

144 Additional safeguards for items subject to legal privilege

(1) Subsection (2) applies if, in a case where intercepted content obtained under a
15bulk interception warrant is to be selected for examination—

(a) the selection of the intercepted content for examination meets any of
the selection conditions in section 143(3)(a) to (c), and

(b) either—

(i) the purpose, or one of the purposes, of using the criteria to be
20used for the selection of the intercepted content for examination
(“the relevant criteria”) is to identify any items subject to legal
privilege, 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
25criteria only if a senior official acting on behalf of the Secretary of State has
approved the use of those criteria.

(3) A senior official may give an approval under subsection (2) only if—

(a) the official considers that the arrangements made for the purposes of
section 141 (safeguards relating to retention and disclosure of material)
30include specific arrangements for the handling, retention, use and
destruction of items subject to legal privilege, and

(b) where 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) 35Where an item subject to legal privilege intercepted in accordance with a bulk
interception warrant is retained following its examination, the person to whom
the 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
40warrant, see section 141.)

145 Application of other restrictions in relation to warrants

(1) Section 53 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) 45Sections 54 to 56 (duty not to make unauthorised disclosures) apply in relation
to bulk interception warrants as they apply in relation to targeted interception

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warrants, but as if the reference in section 55(2)(c) to a requirement for
disclosure imposed by virtue of section 39(5) were a reference to such a
requirement imposed by virtue of section 140(4).

Interpretation

146 5Chapter 1: interpretation

(1) In 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;

  • 10“overseas-related communications” has the meaning given by section 128;

  • “secondary data” has the meaning given by section 129, 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
    15of the Senior Management Structure of Her Majesty’s Diplomatic
    Service;

  • “the specified operational purposes” has the meaning given by section
    134(11).

(2) See also—

  • 20section 237 (telecommunications definitions),

  • section 239 (general definitions),

  • section 240 (index of defined expressions).

CHAPTER 2 Bulk acquisition warrants

25Bulk acquisition warrants

147 Power 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) 30in the interests of national security, or

(ii) on 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
35conduct,

(c) the Secretary of State considers that—

(i) each of the specified operational purposes (see section 150) is a
purpose for which the examination of communications data
obtained under the warrant is or may be necessary, and

(ii) 40the examination of such data for each such purpose is necessary
on any of the grounds on which the Secretary of State considers
the warrant to be necessary,

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(d) the Secretary of State considers that satisfactory arrangements made for
the purposes of section 159 (safeguards relating to the retention and
disclosure of data) are in force in relation to the warrant, and

(e) the decision to issue the warrant has been approved by a Judicial
5Commissioner.

For the meaning of “head of an intelligence service”, see section 239.

(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) 10in 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) A warrant may be considered necessary on the ground falling within
subsection (2)(b) only if the communications data which it is considered
15necessary to obtain is communications data relating to the acts or intentions of
persons outside the British Islands.

(4) The fact that the communications data which would be obtained under a
warrant relates to the activities in the British Islands of a trade union is not, of
itself, sufficient to establish that the warrant is necessary in the interests of
20national security or on that ground and a ground falling within subsection (2).

(5) A bulk acquisition 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 activities in subsection (6).

(6) The activities are—

(a) 25requiring a telecommunications operator specified in the warrant—

(i) to disclose to a person specified in the warrant any
communications data which is specified in the warrant and is in
the possession of the operator,

(ii) to obtain any communications data specified in the warrant
30which is not in the possession of the operator but which the
operator is capable of obtaining, or

(iii) to disclose to a person specified in the warrant any data
obtained as mentioned in sub-paragraph (ii),

(b) the selection for examination, in any manner described in the warrant,
35of communications data obtained under the warrant,

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

(7) A bulk acquisition warrant also authorises the following conduct (in addition
40to 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, and

(b) conduct by any person which is conduct in pursuance of a requirement
imposed by or on behalf of the person to whom the warrant is
45addressed to be provided with assistance in giving effect to the
warrant.

(8) A bulk acquisition warrant may relate to data whether or not in existence at the
time of the issuing of the warrant.

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

148 Approval of warrants by Judicial Commissioners

(1) 5In deciding whether to approve a decision to issue a warrant under section 147,
a 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)(a) of
that section,

(b) 10whether the conduct that would be authorised by the warrant is
proportionate to what is sought to be achieved by that conduct, and

(c) whether—

(i) each of the specified operational purposes (see section 150) is a
purpose for which the examination of communications data
15obtained under the warrant is or may be necessary, and

(ii) the examination of such data for each such purpose is necessary
as mentioned in section 147(1)(c)(ii).

(2) In doing so, the Judicial Commissioner must—

(a) apply the same principles as would be applied by a court on an
20application for judicial review, and

(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).

(3) 25Where a Judicial Commissioner refuses to approve a decision to issue a
warrant under section 147, the Judicial Commissioner must give the Secretary
of State written reasons for the refusal.

(4) Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to issue a warrant under section
30147, the Secretary of State may ask the Investigatory Powers Commissioner to
decide whether to approve the decision to issue the warrant.

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

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

(2) 35Before a bulk acquisition warrant is issued, it must be signed by the Secretary
of State.

150 Requirements that must be met by warrants

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

(2) 40A bulk acquisition warrant must be addressed to the head of the intelligence
service by whom, or on whose behalf, the application for the warrant was
made.