The Investigatory Powers Act received Royal Assent on 29 November 2016.
Nicknamed “the Snoopers’ Charter”, the Act provides that communications service providers may be required by the Secretary of State to retain communications data, for up to 12 months, where it is considered necessary and proportionate to do so and where that decision has been approved by a Judicial Commissioner.
Specified public authorities, including the police, the security and intelligence agencies as well as local authorities, may acquire communications data from a telecommunications operator or postal operator where it is both necessary and proportionate to do so, for specified purposes.
The Government says that retention of, and ability to access, communications data is an essential tool for law enforcement and national security investigations. It is used to investigate crime, keep children safe, support or disprove alibis and link a suspect to a particular crime scene, amongst many other purposes. Sometimes communications data is the only way to identify offenders, particularly where offences are committed online, such as child sexual exploitation or fraud.
However, there have been concerns around the balance between privacy and security in the Act. In January 2018 a Court of Appeal ruling found the Data Retention and Investigatory Powers Act (DRIPA) – a previous law covering state surveillance, which has been expanded upon with the Investigatory Powers Act – is unlawful.
The court ruled that the legislation violated UK citizens’ human rights (Article 8 of the European Convention on Human Rights) by collecting internet activity and phone records and letting public bodies grant themselves access to these personal details with no suspicion of serious crime and no independent sign-off. The court said that the Act will have to be “urgently changed” as a result.
Fresh amendments were also proposed by the government in November 2017 following a European court ruling which said that the “general and indiscriminate retention” of personal communications data by police and security services “cannot be considered justified within a democratic society”.
Blackstone’s’ Guide to the Investigatory Powers Act 2016 is written by Simon Mckay, a barrister and surveillance law expert. It is is an excellent guide to this complicated piece of legislation.
It starts with a very useful chapter on the history and background to the Act, which is important to read, in order to understand where the Government is coming from with this controversial legislation. Subsequent chapters discuss in detail, amongst other things, the processes and pitfalls in relation to the interception of communications, access to communications data and retention of data and equipment interference. Each chapter does not just refer the reader to the Act but also discusses other relevant legislation as well as caselaw from UK and European courts.
Part 1, Chapter 2 of the Regulation of Investigatory Powers Act (RIPA), provided a framework for the lawful acquisition and disclosure of communications data by law enforcement agencies as well as other public bodies including councils. This part of RIPA has now been replaced by Part 3 of the Investigatory Powers Act. Chapter 4 of the book explains the process in detail and the familiar RIPA concepts of notices and authorisations.
Section 73-75 of the Act places restrictions on local authorities’ ability to acquire communications and data. Experienced practitioners, with a knowledge of RIPA, will not be surprised by the restrictions which include a need for high-level internal authorisation and magistrates’ approval. Of course with the new Act there are now new oversight arrangements, which are explained in Chapter 9.
If you are involved in advising or training on surveillance and investigations law, this book will be a valuable addition to your library. It also contains a copy of the Act.