In October 2015 the Prime Minister appointed Sir Stanley Burnton as the new Interception of Communications Commissioner replacing Sir Anthony May. Sir Stanley’s function is to keep under review the interception of communications and the acquisition and disclosure of communications data by public authorities under the Regulation of Investigatory Powers Act 2000 (RIPA).
Local authorities, as well as other agencies, have powers under Part I Chapter 2 of RIPA to acquire communications data from Communications Service Providers (CSPs). The definition of “communications data” includes information relating to the use of a communications service (e.g. phone, internet, post) but does not include the contents of the communication itself. It is broadly split into 3 categories: “traffic data” i.e. where a communication was made from, to whom and when; “service data” i.e. the use made of the service by any person e.g. itemised telephone records; “subscriber data” i.e. any other information that is held or obtained by a CSP on a person they provide a service to.
Some public authorities have access to all types of communications data e.g. the Police, the Ambulance Service and HM Revenues and Customs. Local authorities are restricted to subscriber and service use data and then only where it is required for the purpose of preventing or detecting crime or preventing disorder. For example, a benefit fraud investigator may be able to obtain an alleged fraudster’s mobile phone bill. As with other RIPA powers, e.g. Directed Surveillance under Part 2, there are forms to fill out and strict tests of necessity and proportionality to satisfy.
On 8th September 2016, Sir Stanley laid his 2015 annual report before Parliament. The report covers the period January to December 2015. Key findings around communications data powers include:
- 761,702 items of communications data were acquired during 2015.
- 48% of the items of communications data were traffic data, 2% service use information and 50% subscriber information.
- 7% of the applications for communications data were made by police forces and law enforcement agencies, 5.7% by the intelligence agencies and 0.6% by local authorities and other public authorities.
- Only 71 local authorities reported using these powers. The majority of these used them on less than 10 occasions.
- Out of the 975 applications made by local authorities in 2015, Kent County Council made 107 of these whilst five councils made just 1 application each.
A big reason for the low use of these powers by local authorities is that, since 1st November 2012, they have had to obtain Magistrates’ approval for even the simplest communications data applications (e.g. mobile subscriber checks).
Another reason may be that since December 2015 last year, the Home Office has required councils to go through the National Anti Fraud Network to access communications data rather than make direct applications to CSPs. This has also made the internal SPoC’s (Single Point of Contact) role redundant. Consequently the Commissioner no longer conduct inspections of individual local authorities; choosing to inspect NAFN instead.
In March 2015 a new Code of Practice for the Acquisition and Disclosure of Communications Data by public authorities came into force. It contains several policy changes, which will require careful consideration.
When the Investigatory Powers Bill comes into force it will change the communications data access regime. Read our blog and watch this space.
Do you make use of these powers and need refresher training? Act Now is running a live one hour webinar on this topic. We also offer a whole host of training in this area. Please visit our website to find out more!