Investigatory Powers Bill (HL Bill 62)

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

177 Safeguards relating to retention and disclosure of material

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

(a) 5that 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 179 are met in relation to that material.

This is subject to subsection (8).

(2) The requirements of this subsection are met in relation to the material obtained
10under the 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;

(b) the extent to which any of the material is disclosed or otherwise made
15available;

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

(d) the 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) 20it is, or is likely to become, necessary in the interests of national security
or on any other grounds falling within section 165(2),

(b) it 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) 25it is necessary for facilitating the carrying out of any functions of the
Judicial Commissioners or of the Investigatory Powers Tribunal under
or 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
30any enactment.

(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
35secure manner.

(5) The requirements of this subsection are met in relation to the material obtained
under the 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) 40For 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 165(2), and

(b) 45its retention is not necessary for any of the purposes mentioned in
paragraphs (b) to (e) of subsection (3) above.

(7) Subsection (8) applies if—

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(a) any material obtained under the warrant has been handed over to any
overseas 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
5the material mentioned in subsection (7)(a), or to the copy mentioned in
subsection (7)(b), the arrangements made for the purpose of this section are not
required to secure that those requirements are met (see instead section 178).

(9) In this section—

  • “copy”, in relation to any material obtained under a warrant, means any
    10of the following (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
    15interfered with to obtain that material,

    and “copied” is to be read accordingly;

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

178 Safeguards relating to disclosure of material overseas

(1) 20The Secretary of State must ensure, in relation to every bulk equipment
interference warrant, that arrangements are in force for securing that—

(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
25those 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 that requirements corresponding to the requirements
of section 177(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
30over, or any copy of which is given, to the authorities in question.

(3) In this section—

  • “copy” has the same meaning as in section 177;

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

179 35Safeguards relating to examination of material etc.

(1) For the purposes of section 177, the requirements of this section are met in
relation to the material obtained under a warrant if—

(a) the selection of any of the material obtained under the warrant for
examination is carried out only for the specified purposes (see
40subsection (2)),

(b) the selection of any of the material for examination is necessary and
proportionate in all the circumstances, and

(c) where any such material is protected material, the selection of the
material for examination meets any of the selection conditions (see
45subsection (3)).

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(2) The selection of material obtained under the warrant for examination is carried
out only for the specified purposes if the material is selected for examination
only so far as is necessary for the operational purposes specified in the warrant
in accordance with section 170.

5In this subsection “specified in the warrant” means specified in the warrant at
the time of the selection of the material for examination.

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

(a) that the selection of the protected material for examination does not
breach the prohibition in subsection (4);

(b) 10that the person to whom the warrant is addressed reasonably considers
that the selection of the protected material for examination would not
breach that prohibition;

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

(d) 15that the selection of the protected material for examination in breach of
that prohibition is authorised by a targeted examination warrant issued
under Part 5.

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

(a) 20any criteria used for the selection of the material for examination are
referable to an individual known to be in the British Islands at that time,
and

(b) the purpose of using those criteria is to identify protected material
consisting of communications sent by, or intended for, that individual
25or private information relating to that individual.

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

(5) The selection of protected material (“the relevant material”) for examination is
authorised by this subsection if—

(a) 30criteria referable to an individual have been, or are being, used for the
selection of material for examination in circumstances falling within
subsection (3)(a) or (b),

(b) at 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
35individual (see subsection (6)) which would mean that the selection of
the relevant material for examination would breach the prohibition in
subsection (4),

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

(d) 40the selection of the relevant material 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
circumstances in relation to an individual if—

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

(b) 45a 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)—

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

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    (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)

    holds a position in the intelligence service of equivalent
    5seniority 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 protected material for examination is
authorised by subsection (5), the person to whom the warrant is addressed
10must notify the Secretary of State that the selection is being carried out.

(9) In this Part, “protected material” means any material obtained under the
warrant other than material which is—

(a) equipment data;

(b) information (other than a communication or equipment data) which is
15not private information.

180 Additional safeguards for items subject to legal privilege

(1) Subsection (2) applies if, in a case where protected material obtained under a
bulk equipment interference warrant is to be selected for examination—

(a) the selection of the material for examination meets any of the selection
20conditions in section 179(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 material for examination (“the
relevant criteria”) is to identify any items subject to legal
25privilege, or

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

(2) The material 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) 30A senior official may give an approval under subsection (2) only if—

(a) the official considers that the arrangements made for the purposes of
section 177 (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) 35where 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 is retained following its examination
under a bulk equipment interference warrant, the person to whom the warrant
40is addressed must inform the Investigatory Powers Commissioner as soon as
is reasonably practicable.

(For provision about the grounds for retaining material obtained under a bulk
equipment interference warrant, see section 177.)

181 Application of other restrictions in relation to warrants

45Sections 124 to 126 (duty not to make unauthorised disclosures) apply in
relation to bulk equipment interference warrants as they apply in relation to

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targeted equipment interference warrants, but as if the reference in section
125(2)(c) to a requirement for disclosure imposed by virtue of section 119(4)
were a reference to such a requirement imposed by virtue of section 176(4).

Interpretation

182 5Chapter 3: interpretation

(1) In this Chapter—

  • “communication” includes—

    (a)

    anything comprising speech, music, sounds, visual images or
    data of any description, and

    (b)

    10signals serving either for the impartation of anything between
    persons, between a person and a thing or between things or for
    the 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
    15such equipment;

  • “equipment data” has the meaning given by section 164;

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

  • “protected material”, in relation to a bulk equipment interference warrant,
    20has the meaning given by section 179(9);

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

  • “the specified operational purposes” has the meaning given by section
    25170(12).

(2) See also—

  • section 237 (telecommunications definitions);

  • section 239 (general definitions);

  • section 240 (index of defined expressions).

30Part 7 Bulk personal dataset warrants

Bulk personal datasets: interpretation

183 Bulk personal datasets: interpretation

(1) For the purposes of this Part, an intelligence service retains a bulk personal
35dataset if—

(a) the intelligence service obtains a set of information that includes
personal data relating to a number of individuals,

(b) the nature of the set is such that the majority of the individuals are not,
and are unlikely to become, of interest to the intelligence service in the
40exercise of its functions,

(c) after any initial examination of the contents, the intelligence service
retains the set for the purpose of the exercise of its functions, and

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(d) the set is held, or is to be held, electronically for analysis in the exercise
of those functions.

(2) In this Part, “personal data” has the same meaning as in the Data Protection Act
1998 except that it also includes data relating to a deceased individual where
5the data would be personal data within the meaning of that Act if it related to
a living individual.

Requirement for warrant

184 Requirement for authorisation by warrant: general

(1) An intelligence service may not exercise a power to retain a bulk personal
10dataset unless the retention of the dataset is authorised by a warrant under this
Part.

(2) An intelligence service may not exercise a power to examine a bulk personal
dataset retained by it unless the examination is authorised by a warrant under
this Part.

(3) 15For the purposes of this Part, there are two kinds of warrant—

(a) a warrant, referred to in this Part as “a class BPD warrant”, authorising
an intelligence service to retain, or to retain and examine, any bulk
personal dataset of a class described in the warrant;

(b) a warrant, referred to in this Part as “a specific BPD warrant”,
20authorising an intelligence service to retain, or to retain and examine,
any bulk personal dataset described in the warrant.

(4) Section 185 sets out exceptions to the restrictions imposed by subsections (1)
and (2) of this section.

185 Exceptions to section 184(1) and (2)

(1) 25Section 184(1) or (2) does not apply to the exercise of a power of an intelligence
service to retain or (as the case may be) examine a bulk personal dataset if the
intelligence service obtained the bulk personal dataset under a warrant or
other authorisation issued or given under this Act.

(2) Section 184(1) or (2) does not apply at any time when a bulk personal dataset
30is being retained or (as the case may be) examined for the purpose of enabling
any of the information contained in it to be destroyed.

(3) Sections 192(8), 200(7) and 201(5) provide for other exceptions to section 184(1)
or (2) (in connection with cases where a Judicial Commissioner refuses to
approve a specific BPD warrant, the non-renewal or cancellation of BPD
35warrants and initial examinations).

186 Restriction on use of class BPD warrants

(1) An intelligence service may not retain, or retain and examine, a bulk personal
dataset in reliance on a class BPD warrant if the head of the intelligence service
considers—

(a) 40that the bulk personal dataset consists of, or includes, health records, or

(b) that a substantial proportion of the bulk personal dataset consists of
sensitive personal data.

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(2) An intelligence service may not retain, or retain and examine, a bulk personal
dataset in reliance on a class BPD warrant if the head of the intelligence service
considers that the nature of the bulk personal dataset, or the circumstances in
which it was created, is or are such that its retention, or retention and
5examination, by the intelligence service raises novel or contentious issues
which ought to be considered by the Secretary of State and a Judicial
Commissioner on an application by the head of the intelligence service for a
specific BPD warrant.

(3) In subsection (1)

  • 10“health records” has the same meaning as in section 189;

  • “sensitive personal data” means personal data consisting of information
    about an individual (whether living or deceased) which is of a kind
    mentioned in section 2(a) to (f) of the Data Protection Act 1998.

Issue of warrants

187 15Class BPD warrants

(1) The head of an intelligence service, or a person acting on his or her behalf, may
apply to the Secretary of State for a class BPD warrant.

(2) The application must include—

(a) a description of the class of bulk personal datasets to which the
20application relates, and

(b) in a case where the intelligence service wishes to examine bulk personal
datasets of that class, the operational purposes for which the
intelligence service wishes to do so.

(3) The Secretary of State may issue the warrant if—

(a) 25the Secretary of State considers that the warrant is necessary—

(i) in the interests of national security,

(ii) for the purposes of preventing or detecting serious crime, or

(iii) in the interests of the economic well-being of the United
Kingdom so far as those interests are also relevant to the
30interests of national security,

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

(c) where the warrant authorises the examination of bulk personal datasets
35of the class described in the warrant, the Secretary of State considers
that—

(i) each of the specified operational purposes (see section 194) is a
purpose for which the examination of bulk personal datasets of
that class is or may be necessary, and

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

(d) the Secretary of State considers that the arrangements made by the
intelligence service for storing bulk personal datasets of the class to
45which the application relates and for protecting them from
unauthorised disclosure are satisfactory, and

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

(4) The fact that a class BPD warrant would authorise the retention, or the
retention and examination, of bulk personal datasets relating to activities in the
5British Islands of a trade union is not, of itself, sufficient to establish that the
warrant is necessary on grounds falling within subsection (3)(a).

(5) An application for a class BPD warrant may only be made on behalf of the head
of an intelligence service by a person holding office under the Crown.

188 Specific BPD warrants

(1) 10The head of an intelligence service, or a person acting on his or her behalf, may
apply to the Secretary of State for a specific BPD warrant in the following cases.

(2) Case 1 is where—

(a) the intelligence service wishes to retain, or to retain and examine, a bulk
personal dataset, and

(b) 15the bulk personal dataset does not fall within a class described in a class
BPD warrant.

(3) Case 2 is where—

(a) the intelligence service wishes to retain, or to retain and examine, a bulk
personal dataset, and

(b) 20the bulk personal dataset falls within a class described in a class BPD
warrant but either—

(i) the intelligence service is prevented by section 186(1) or (2) from
retaining, or retaining and examining, the bulk personal dataset
in reliance on the class BPD warrant, or

(ii) 25the intelligence service at any time considers that it would be
appropriate to seek a specific BPD warrant.

(4) The application must include—

(a) a description of the bulk personal dataset to which the application
relates, and

(b) 30in a case where the intelligence service wishes to examine the bulk
personal dataset, the operational purposes for which the intelligence
service wishes to do so.

(5) Where subsection (3)(b)(i) applies, the application must include an explanation
of why the intelligence service is prevented by section 186(1) or (2) from
35retaining, or retaining and examining, the bulk personal dataset in reliance on
a class BPD warrant.

(6) The Secretary of State may issue the warrant if—

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

(i) in the interests of national security,

(ii) 40for the purposes of preventing or detecting serious crime, or

(iii) 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,

(b) the Secretary of State considers that the conduct authorised by the
45warrant is proportionate to what is sought to be achieved by the
conduct,

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(c) where the warrant authorises the examination of a bulk personal
dataset, the Secretary of State considers that—

(i) each of the specified operational purposes (see section 194) is a
purpose for which the examination of the bulk personal dataset
5is or may be necessary, and

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

(d) the Secretary of State considers that the arrangements made by the
10intelligence service for storing the bulk personal dataset and for
protecting it from unauthorised disclosure are satisfactory, and

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

(7) 15The fact that a specific BPD warrant would authorise the retention, or the
retention and examination, of bulk personal datasets relating to activities in the
British Islands of a trade union is not, of itself, sufficient to establish that the
warrant is necessary on grounds falling within subsection (6)(a).

(8) A specific BPD warrant relating to a bulk personal dataset (“dataset A”) may
20also authorise the retention or examination of other bulk personal datasets
(“replacement datasets”) that do not exist at the time of the issue of the warrant
but may reasonably be regarded as replacements for dataset A.

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

189 25Additional safeguards for health records

(1) Subsections (2) and (3) apply if—

(a) an application is made by or on behalf of the head of an intelligence
service for the issue of a specific BPD warrant, and

(b) the purpose, or one of the purposes, of the warrant is to authorise the
30retention, or the retention and examination, of health records.

(2) The application must contain a statement that the purpose, or one of the
purposes, of the warrant is to authorise the retention, or the retention and
examination, of health records.

(3) The Secretary of State may issue the warrant only if the Secretary of State
35considers that there are exceptional and compelling circumstances that make it
necessary to authorise the retention, or the retention and examination, of
health records.

(4) Subsection (5) applies if—

(a) an application is made by or on behalf of the head of an intelligence
40service for a specific BPD warrant,

(b) the head of the intelligence service considers that the bulk personal
dataset includes, or is likely to include, health records, and

(c) subsections (2) and (3) do not apply.

(5) The application must contain either—

(a) 45a statement that the head of the intelligence service considers that the
bulk personal dataset includes health records, or

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(b) a statement that the head of the intelligence service considers that it is
likely that the bulk personal dataset includes health records and an
assessment of how likely this is.

(6) In this section, “health record” means a record, or a copy of a record, which—

(a) 5consists of information relating to the physical or mental health or
condition of an individual,

(b) was made by or on behalf of a health professional in connection with
the care of that individual, and

(c) was obtained by the intelligence service from a health professional or a
10health service body or from a person acting on behalf of a health
professional or a health service body in relation to the record or the
copy.

(7) In subsection (6)—

  • “health professional” has the same meaning as in the Data Protection Act
    151998 (see section 69 of that Act);

  • “health service body” has the meaning given by section 69(3) of that Act.

190 Approval of warrants by Judicial Commissioners

(1) In deciding whether to approve a decision to issue a class BPD warrant or a
specific BPD warrant, a Judicial Commissioner must review the Secretary of
20State’s conclusions as to the following matters—

(a) whether the warrant is necessary on grounds falling within section
187(3)(a) or (as the case may be) section 188(6)(a),

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

(c) 25where the warrant authorises examination of bulk personal datasets of
a class described in the warrant or (as the case may be) of a bulk
personal dataset described in the warrant, whether—

(i) each of the specified operational purposes (see section 194) is a
purpose for which the examination of bulk personal datasets of
30that class or (as the case may be) the bulk personal dataset is or
may be necessary, and

(ii) the examination of bulk personal datasets of that class or (as the
case may be) the bulk personal dataset is necessary as
mentioned in section 187(3)(c)(ii) or (as the case may be) section
35188(6)(c)(ii).

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

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

(b) consider the matters referred to in subsection (1) with a sufficient
40degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).

(3) Where a Judicial Commissioner refuses to approve a decision to issue a class
BPD warrant or a specific BPD warrant, the Judicial Commissioner must give
45the 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 class BPD warrant or a