Investigatory Powers Bill (HL Bill 62)

Investigatory Powers BillPage 40

earlier) is destroyed as soon as there are no longer any relevant grounds for
retaining 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) 5its retention is not necessary, or not likely to become necessary, on any
of the grounds falling within section 20 on which a warrant under
Chapter 1 of this Part may be necessary, and

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

(7) 10Where an item subject to legal privilege intercepted in accordance with a
targeted interception warrant or mutual assistance 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.

(8) 15Subsection (9) applies if—

(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.

(9) To the extent that the requirements of subsections (2) and (5) relate to any of
20the material mentioned in subsection (8)(a), or to the copy mentioned in
subsection (8)(b), the arrangements made for the purposes of this section are
not required to secure that those requirements are met (see instead section 52).

(10) In this section—

  • “copy”, in relation to material obtained under a warrant, means any of the
    25following (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—

    (i)

    refers to any interception or to the obtaining of any
    30material, 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;

  • “the issuing authority” means—

    (a)

    35the Secretary of State, in the case of warrants issued by the
    Secretary of State;

    (b)

    the Scottish Ministers, in the case of warrants issued by the
    Scottish Ministers;

  • “overseas authorities” means authorities of a country or territory outside
    40the United Kingdom.

52 Safeguards relating to disclosure of material overseas

(1) The issuing authority must ensure, in relation to every targeted interception
warrant or mutual assistance warrant issued by that authority, that
arrangements are in force for securing that—

(a) 45any material obtained under the warrant is handed over to overseas
authorities only if the requirements of subsection (2) are met, and

Investigatory Powers BillPage 41

(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 issuing authority—

(a) 5that requirements corresponding to the requirements of section 51(2)
and (5) will apply, to such extent (if any) as the issuing authority
considers appropriate, in relation to any of the material which is
handed over, or any copy of which is given, to the authorities in
question, and

(b) 10that restrictions are in force which would prevent, to such extent (if
any) as the issuing authority 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) 15In subsection (2)(b) “prohibited disclosure” means a disclosure which, if made
in the United Kingdom, would breach the prohibition in section 53(1).

(4) In this section—

  • “copy” has the same meaning as in section 51;

  • “the issuing authority” means—

    (a)

    20the Secretary of State, in the case of warrants issued by the
    Secretary of State;

    (b)

    the Scottish Ministers, in the case of warrants issued by the
    Scottish Ministers;

  • “overseas authorities” means authorities of a country or territory outside
    25the United Kingdom.

53 Exclusion of matters from legal proceedings

(1) No evidence may be adduced, question asked, assertion or disclosure made or
other thing done in, for the purposes of or in connection with any legal
proceedings or Inquiries Act proceedings which (in any manner)—

(a) 30discloses, in circumstances from which its origin in interception-related
conduct may be inferred—

(i) any content of an intercepted communication, or

(ii) any secondary data obtained from a communication, or

(b) tends to suggest that any interception-related conduct has or may have
35occurred or may be going to occur.

This is subject to Schedule 3 (exceptions).

(2) “Interception-related conduct” means—

(a) conduct by a person within subsection (3) that is, or in the absence of
any lawful authority would be, an offence under section 3(1) (offence of
40unlawful interception);

(b) a breach of the prohibition imposed by section 9 (restriction on
requesting interception by overseas authorities);

(c) a breach of the prohibition imposed by section 10 (restriction on
requesting assistance under mutual assistance agreements etc.);

(d) 45the making of an application by any person for a warrant, or the issue
of a warrant, under Chapter 1 of this Part;

Investigatory Powers BillPage 42

(e) the imposition of any requirement on any person to provide assistance
in giving effect to a targeted interception warrant or mutual assistance
warrant.

(3) The persons referred to in subsection (2)(a) are—

(a) 5any person who is an intercepting authority (see section 18);

(b) any person holding office under the Crown;

(c) any person deemed to be the proper officer of Revenue and Customs by
virtue of section 8(2) of the Customs and Excise Management Act 1979;

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

(e) 10any postal operator or telecommunications operator;

(f) any person employed or engaged for the purposes of the business of a
postal operator or telecommunications operator.

(4) Any reference in subsection (1) to interception-related conduct also includes
any conduct taking place before the coming into force of this section and
15consisting of—

(a) conduct by a person within subsection (3) that—

(i) was an offence under section 1(1) or (2) of the Regulation of
Investigatory Powers Act 2000 (“RIPA”), or

(ii) would have been such an offence in the absence of any lawful
20authority (within the meaning of section 1(5) of RIPA);

(b) conduct by a person within subsection (3) that—

(i) was an offence under section 1 of the Interception of
Communications Act 1985, or

(ii) would have been such an offence in the absence of subsections
25(2) and (3) of that section;

(c) a breach by the Secretary of State of the duty under section 1(4) of RIPA
(restriction on requesting assistance under mutual assistance
agreements);

(d) the making of an application by any person for a warrant, or the issue
30of a warrant, under—

(i) Chapter 1 of Part 1 of RIPA, or

(ii) the Interception of Communications Act 1985;

(e) the imposition of any requirement on any person to provide assistance
in giving effect to a warrant under Chapter 1 of Part 1 of RIPA.

(5) 35In this section—

  • “Inquiries Act proceedings” means proceedings of an inquiry under the
    Inquiries Act 2005;

  • “intercepted communication” means any communication intercepted in
    the course of its transmission by means of a postal service or
    40telecommunication system.

54 Duty not to make unauthorised disclosures

(1) A person to whom this section applies must not make an unauthorised
disclosure to another person.

(2) A person makes an unauthorised disclosure for the purposes of this section if—

(a) 45the person discloses any of the matters within subsection (4) in relation
to—

(i) a warrant under Chapter 1 of this Part, or

Investigatory Powers BillPage 43

(ii) a warrant under Chapter 1 of Part 1 of the Regulation of
Investigatory Powers Act 2000, and

(b) the disclosure is not an excepted disclosure (see section 55).

(3) This section applies to the following persons—

(a) 5any person who is an intercepting authority (see section 18);

(b) any person holding office under the Crown;

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

(d) any postal operator or telecommunications operator;

(e) any person employed or engaged for the purposes of the business of a
10postal operator or telecommunications operator;

(f) any person to whom any of the matters within subsection (4) have been
disclosed in relation to a warrant mentioned in subsection (2)(a).

(4) The matters referred to in subsection (2)(a) are—

(a) the existence or contents of the warrant;

(b) 15the details of the issue of the warrant or of any renewal or modification
of the warrant;

(c) the existence or contents of any requirement to provide assistance in
giving effect to the warrant;

(d) the steps taken in pursuance of the warrant or of any such requirement;

(e) 20any of the material obtained under the warrant.

55 Section 54: meaning of “excepted disclosure”

(1) For the purposes of section 54 a disclosure made in relation to a warrant is an
“excepted disclosure” if it falls within any of the Heads set out in—

(a) subsection (2) (disclosures authorised by warrant etc.);

(b) 25subsection (3) (oversight bodies);

(c) subsection (4) (legal advisers);

(d) subsection (7) (disclosures of a general nature).

(2) Head 1 is—

(a) a disclosure authorised by the warrant;

(b) 30a disclosure authorised by the person to whom the warrant is or was
addressed or under any arrangements made by that person for the
purposes of this section;

(c) a disclosure authorised by the terms of any requirement to provide
assistance in giving effect to the warrant (including any requirement
35for disclosure imposed by virtue of section 39(5) or, in the case of a
warrant under Chapter 1 of Part 1 of the Regulation of Investigatory
Powers Act 2000 (“RIPA”), section 11(9) of RIPA).

(3) Head 2 is—

(a) in the case of a warrant under Chapter 1 of this Part, a disclosure made
40to, or authorised by, a Judicial Commissioner;

(b) in the case of a warrant under Chapter 1 of Part 1 of RIPA, a disclosure
made to, or authorised by, the Interception of Communications
Commissioner or a Judicial Commissioner;

(c) a disclosure made to the Independent Police Complaints Commission
45for the purposes of facilitating the carrying out of any of its functions;

Investigatory Powers BillPage 44

(d) a disclosure made to the Intelligence and Security Committee of
Parliament for the purposes of facilitating the carrying out of any of its
functions.

(4) Head 3 is—

(a) 5a disclosure made by a legal adviser—

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

(ii) for the purposes of those proceedings;

(b) a disclosure made—

(i) 10by a professional legal adviser (“L”) to L’s client or a
representative of L’s client, or

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

in connection with the giving, by L to L’s client, of advice about the
effect of the relevant provisions (see subsection (6)).

(5) 15But a disclosure within Head 3 is not an excepted disclosure if it is made with
a view to furthering any criminal purpose.

(6) In subsection (4)(b) “the relevant provisions” means—

(a) in the case of a warrant under Chapter 1 of this Part, the provisions of
this Part;

(b) 20in the case of a warrant under Chapter 1 of Part 1 of RIPA, the
provisions of that Chapter.

(7) Head 4 is—

(a) a disclosure that—

(i) is made by a postal operator or a telecommunications operator
25in accordance with a requirement imposed by regulations made
by the Secretary of State, and

(ii) relates to the number of warrants under Chapter 1 of this Part
to which the operator has given effect or has been involved in
giving effect;

(b) 30a disclosure of information that does not relate to any particular
warrant under Chapter 1 of this Part or under Chapter 1 of Part 1 of
RIPA but relates to any such warrants in general.

(8) Nothing in this section affects the operation of section 53 (which, among other
things, prohibits the making of certain disclosures in, for the purposes of or in
35connection with legal proceedings).

56 Offence of making unauthorised disclosures

(1) A person who fails to comply with section 54(1) commits an offence.

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

(a) on summary conviction in England and Wales—

(i) 40to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
2003), or

(ii) to a fine,

45or to both;

(b) on summary conviction in Scotland—

Investigatory Powers BillPage 45

(i) to 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) 5to imprisonment for a term not exceeding 6 months, or

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

or to both;

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

(3) 10In proceedings against any person for an offence under this section in respect
of any disclosure, it is a defence for the person to show that the person could
not reasonably have been expected, after first becoming aware of the matter
disclosed, to take steps to prevent the disclosure.

Interpretation

57 15Part 2: interpretation

(1) In this Part—

  • EU mutual assistance instrument” has the meaning given by section
    10(3);

  • “intercepting authority” is to be read in accordance with section 18;

  • 20“international mutual assistance agreement” has the meaning given by
    section 10(3);

  • “mutual assistance warrant” has the meaning given by section 15(4);

  • “police force” means any of the following—

    (a)

    any police force maintained under section 2 of the Police Act
    251996;

    (b)

    the metropolitan police force;

    (c)

    the City of London police force;

    (d)

    the Police Service of Scotland;

    (e)

    the Police Service of Northern Ireland;

    (f)

    30the Ministry of Defence Police;

    (g)

    the Royal Navy Police;

    (h)

    the Royal Military Police;

    (i)

    the Royal Air Force Police;

    (j)

    the British Transport Police Force;

  • 35“relevant content”, in relation to a targeted examination warrant, has the
    meaning given by section 15(3);

  • “relevant Scottish application” has the meaning given by section 22;

  • “secondary data” has the meaning given by section 16, and references to
    obtaining secondary data from a communication are to be read in
    40accordance with that section;

  • “targeted examination warrant” has the meaning given by section 15(3).

(2) In this Part references to a member of a police force, in relation to the Royal
Navy Police, the Royal Military Police or the Royal Air Force Police, do not
include any member of that force who is not for the time being attached to, or
45serving with, that force or another of those police forces.

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(3) See also—

  • section 237 (telecommunications definitions),

  • section 238 (postal definitions),

  • section 239 (general definitions),

  • 5section 240 (index of defined expressions).

Part 3 Authorisations for obtaining communications data

Targeted authorisations for obtaining data

58 Power to grant authorisations

(1) 10Subsection (2) applies if a designated senior officer of a relevant public
authority considers—

(a) that it is necessary to obtain communications data for a purpose falling
within subsection (7),

(b) that it is necessary to obtain the data—

(i) 15for the purposes of a specific investigation or a specific
operation, or

(ii) for the purposes of testing, maintaining or developing
equipment, systems or other capabilities relating to the
availability or obtaining of communications data, and

(c) 20that the conduct authorised by the authorisation is proportionate to
what is sought to be achieved.

(2) The designated senior officer may authorise any officer of the authority to
engage in any conduct which—

(a) is for the purpose of obtaining the data from any person, and

(b) 25relates to—

(i) a telecommunication system, or

(ii) data derived from a telecommunication system.

(3) Subsections (1) and (2) are subject to—

(a) section 59 (restrictions in relation to internet connection records),

(b) 30section 60 (additional restrictions on grant of authorisations),

(c) sections 67 and 70 to 72 and Schedule 4 (restrictions relating to certain
relevant public authorities),

(d) section 73 (requirement to consult a single point of contact), and

(e) section 74 (Commissioner approval for authorisations to identify or
35confirm journalistic sources).

(4) Authorised conduct may, in particular, consist of an authorised officer—

(a) obtaining the communications data themselves from any person or
telecommunication system,

(b) asking any person whom the authorised officer believes is, or may be,
40in possession of the communications data to disclose it to a person
identified by, or in accordance with, the authorisation,

(c) asking any person whom the authorised officer believes is not in
possession of the communications data but is capable of obtaining it, to

Investigatory Powers BillPage 47

obtain it and disclose it to a person identified by, or in accordance with,
the authorisation, or

(d) requiring by notice a telecommunications operator—

(i) whom the authorised officer believes is, or may be, in
5possession of the communications data to disclose the data to a
person identified by, or in accordance with, the authorisation,
or

(ii) whom the authorised officer believes is not in possession of the
communications data but is capable of obtaining the data, to
10obtain it and disclose it to a person identified by, or in
accordance with, the authorisation.

(5) An authorisation—

(a) may relate to data whether or not in existence at the time of the
authorisation,

(b) 15may authorise the obtaining or disclosure of data by a person who is
not an authorised officer, or any other conduct by such a person, which
enables or facilitates the obtaining of the communications data
concerned, and

(c) may, in particular, require a telecommunications operator who controls
20or provides a telecommunication system to obtain or disclose data
relating to the use of a telecommunications service provided by another
telecommunications operator in relation to that system.

(6) An authorisation—

(a) may not authorise any conduct consisting in the interception of
25communications in the course of their transmission by means of a
telecommunication system, and

(b) may not authorise an authorised officer to ask or require, in the
circumstances mentioned in subsection (4)(b), (c) or (d), a person to
disclose the data to any person other than—

(i) 30an authorised officer, or

(ii) an officer of the same relevant public authority as an authorised
officer.

(7) It is necessary to obtain communications data for a purpose falling within this
subsection if it is necessary to obtain the data—

(a) 35in the interests of national security,

(b) for the purpose of preventing or detecting crime or of preventing
disorder,

(c) 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
40security,

(d) in the interests of public safety,

(e) for the purpose of protecting public health,

(f) for the purpose of assessing or collecting any tax, duty, levy or other
imposition, contribution or charge payable to a government
45department,

(g) for the purpose of preventing death or injury or any damage to a
person’s physical or mental health, or of mitigating any injury or
damage to a person’s physical or mental health,

(h) to assist investigations into alleged miscarriages of justice,

Investigatory Powers BillPage 48

(i) where a person (“P”) has died or is unable to identify themselves
because of a physical or mental condition—

(i) to assist in identifying P, or

(ii) to obtain information about P’s next of kin or other persons
5connected with P or about the reason for P’s death or condition,
or

(j) for the purpose of exercising functions relating to—

(i) the regulation of financial services and markets, or

(ii) financial stability.

(8) 10The fact that the communications data which would be obtained in pursuance
of an authorisation relates to the activities in the British Islands of a trade union
is not, of itself, sufficient to establish that it is necessary to obtain the data for a
purpose falling within subsection (7).

(9) See—

(a) 15sections 67 and 70 for the meanings of “designated senior officer” and
“relevant public authority”;

(b) section 81 for the way in which this Part applies to postal operators and
postal services.

59 Restrictions in relation to internet connection records

(1) 20A designated senior officer of a local authority may not grant an authorisation
for the purpose of obtaining data which is, or can only be obtained by
processing, an internet connection record.

(2) A designated senior officer of a relevant public authority which is not a local
authority may not grant an authorisation for the purpose of obtaining data
25which is, or can only be obtained by processing, an internet connection record
unless condition A, B or C is met.

(3) Condition A is that the designated senior officer considers that it is necessary,
for a purpose falling within section 58(7), to obtain the data to identify which
person or apparatus is using an internet service where—

(a) 30the service and time of use are already known, but

(b) the identity of the person or apparatus using the service is not known.

(4) Condition B is that—

(a) the purpose for which the data is to be obtained falls within section
58(7) but is not the purpose falling within section 58(7)(b) of preventing
35or detecting crime, and

(b) the designated senior officer considers that it is necessary to obtain the
data to identify—

(i) which internet communications service is being used, and when
and how it is being used, by a person or apparatus whose
40identity is already known,

(ii) where or when a person or apparatus whose identity is already
known is obtaining access to, or running, a computer file or
computer program which wholly or mainly involves making
available, or acquiring, material whose possession is a crime, or

(iii) 45which internet service is being used, and when and how it is
being used, by a person or apparatus whose identity is already
known.

Investigatory Powers BillPage 49

(5) Condition C is that—

(a) the purpose for which the data is to be obtained is the purpose falling
within section 58(7)(b) of preventing or detecting crime,

(b) the crime to be prevented or detected is serious crime or other relevant
5crime, and

(c) the designated senior officer considers that it is necessary to obtain the
data to identify—

(i) which internet communications service is being used, and when
and how it is being used, by a person or apparatus whose
10identity is already known,

(ii) where or when a person or apparatus whose identity is already
known is obtaining access to, or running, a computer file or
computer program which wholly or mainly involves making
available, or acquiring, material whose possession is a crime, or

(iii) 15which internet service is being used, and when and how it is
being used, by a person or apparatus whose identity is already
known.

(6) In subsection (5) “other relevant crime” means crime which is not serious crime
but where the offence, or one of the offences, which is or would be constituted
20by the conduct concerned is—

(a) an offence for which an individual who has reached the age of 18 (or, in
relation to Scotland or Northern Ireland, 21) is capable of being
sentenced to imprisonment for a term of 6 months or more
(disregarding any enactment prohibiting or restricting the
25imprisonment of individuals who have no previous convictions), or

(b) an offence—

(i) by a person who is not an individual, or

(ii) which involves, as an integral part of it, the sending of a
communication or a breach of a person’s privacy.

(7) 30In this Act “internet connection record” means communications data which—

(a) may be used to identify, or assist in identifying, a telecommunications
service to which a communication is transmitted by means of a
telecommunication system for the purpose of obtaining access to, or
running, a computer file or computer program, and

(b) 35comprises data generated or processed by a telecommunications
operator in the process of supplying the telecommunications service to
the sender of the communication (whether or not a person).

60 Additional restrictions on grant of authorisations

(1) A designated senior officer may not grant an authorisation for the purposes of
40a specific investigation or a specific operation if the officer is working on that
investigation or operation.

(2) But, if the designated senior officer considers that there are exceptional
circumstances which mean that subsection (1) should not apply in a particular
case, that subsection does not apply in that case.

(3) 45Examples of exceptional circumstances include—

(a) an imminent threat to life or another emergency,