Investigatory Powers Act 2016

Publication Date:January 01, 2016
 
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Investigatory Powers Act 2016

2016 Chapter 25

An Act to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994; and for connected purposes.

[29 November 2016]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1 General privacy protections

Part 1

General privacy protections

Overview and general privacy duties

Overview and general privacy duties

S-1 Overview of Act

1 Overview of Act

(1) This Act sets out the extent to which certain investigatory powers may be used to interfere with privacy.

(2) This Part imposes certain duties in relation to privacy and contains other protections for privacy.

(3) These other protections include offences and penalties in relation to—

(a)

the unlawful interception of communications, and

(b)

the unlawful obtaining of communications data.

(4) This Part also abolishes and restricts various general powers to obtain communications data and restricts the circumstances in which equipment interference, and certain requests about the interception of communications, can take place.

(5) Further protections for privacy—

(a)

can be found, in particular, in the regimes provided for by Parts 2 to 7 and in the oversight arrangements in Part 8, and

(b)

also exist—

(i) by virtue of the Human Rights Act 1998,

(ii) in section 55 of the Data Protection Act 1998 (unlawful obtaining etc. of personal data),

(iii) in section 48 of the Wireless Telegraphy Act 2006 (offence of interception or disclosure of messages),

(iv) in sections 1 to 3A of the Computer Misuse Act 1990 (computer misuse offences),

(v) in the common law offence of misconduct in public office, and

(vi) elsewhere in the law.

(6) The regimes provided for by Parts 2 to 7 are as follows—

(a)

Part 2 and Chapter 1 of Part 6 set out circumstances (including under a warrant) in which the interception of communications is lawful and make further provision about the interception of communications and the treatment of material obtained in connection with it,

(b)

Part 3 and Chapter 2 of Part 6 set out circumstances in which the obtaining of communications data is lawful in pursuance of an authorisation or under a warrant and make further provision about the obtaining and treatment of such data,

(c)

Part 4 makes provision for the retention of certain communications data in pursuance of a notice,

(d)

Part 5 and Chapter 3 of Part 6 deal with equipment interference warrants, and

(e)

Part 7 deals with bulk personal dataset warrants.

(7) As to the rest of the Act—

(a)

Part 8 deals with oversight arrangements for regimes in this Act and elsewhere, and

(b)

Part 9 contains miscellaneous and general provisions including amendments to sections 3 and 5 of the Intelligence Services Act 1994 and provisions about national security and combined warrants and authorisations.

S-2 General duties in relation to privacy

2 General duties in relation to privacy

(1) Subsection (2) applies where a public authority is deciding whether—

(a)

to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,

(b)

to modify such a warrant,

(c)

to approve a decision to issue, renew or modify such a warrant,

(d)

to grant, approve or cancel an authorisation under Part 3,

(e)

to give a notice in pursuance of such an authorisation or under Part 4 or section 252, 253 or 257,

(f)

to vary or revoke such a notice,

(g)

to approve a decision to give or vary a notice under Part 4 or section 252, 253 or 257,

(h)

to approve the use of criteria under section 153, 194 or 222,

(i)

to give an authorisation under section 219(3)(b),

(j)

to approve a decision to give such an authorisation, or

(k)

to apply for or otherwise seek any issue, grant, giving, modification, variation or renewal of a kind falling within paragraph (a), (b), (d), (e), (f) or (i).

(2) The public authority must have regard to—

(a)

whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means,

(b)

whether the level of protection to be applied in relation to any obtaining of information by virtue of the warrant, authorisation or notice is higher because of the particular sensitivity of that information,

(c)

the public interest in the integrity and security of telecommunication systems and postal services, and

(d)

any other aspects of the public interest in the protection of privacy.

(3) The duties under subsection (2)—

(a)

apply so far as they are relevant in the particular context, and

(b)

are subject to the need to have regard to other considerations that are also relevant in that context.

(4) The other considerations may, in particular, include—

(a)

the interests of national security or of the economic well-being of the United Kingdom,

(b)

the public interest in preventing or detecting serious crime,

(c)

other considerations which are relevant to—

(i) whether the conduct authorised or required by the warrant, authorisation or notice is proportionate, or

(ii) whether it is necessary to act for a purpose provided for by this Act,

(d)

the requirements of the Human Rights Act 1998, and

(e)

other requirements of public law.

(5) For the purposes of subsection (2)(b), examples of sensitive information include—

(a)

items subject to legal privilege,

(b)

any information identifying or confirming a source of journalistic information, and

(c)

relevant confidential information within the meaning given by paragraph 2(4) of Schedule 7 (certain information held in confidence and consisting of personal records, journalistic material or communications between Members of Parliament and their constituents).

(6) In this section “public authority” includes the relevant judicial authority (within the meaning of section 75) where the relevant judicial authority is deciding whether to approve under that section an authorisation under Part 3.

Prohibitions against unlawful interception

Prohibitions against unlawful interception

S-3 Offence of unlawful interception

3 Offence of unlawful interception

(1) A person commits an offence if—

(a)

the person intentionally intercepts a communication in the course of its transmission by means of—

(i) a public telecommunication system,

(ii) a private telecommunication system, or

(iii) a public postal service,

(b)

the interception is carried out in the United Kingdom, and

(c)

the person does not have lawful authority to carry out the interception.

(2) But it is not an offence under subsection (1) for a person to intercept a communication in the course of its transmission by means of a private telecommunication system if the person—

(a)

is a person with a right to control the operation or use of the system, or

(b)

has the express or implied consent of such a person to carry out the interception.

(3) Sections 4 and 5 contain provision about—

(a)

the meaning of “interception”, and

(b)

when interception is to be regarded as carried out in the United Kingdom.

(4) Section 6 contains provision about when a person has lawful authority to carry out an interception.

(5) For the meaning of the terms used in subsection (1)(a)(i) to (iii), see sections 261 and 262.

(6) A person who is guilty of an offence under subsection (1) is liable—

(a)

on summary conviction in England and Wales, to a fine;

(b)

on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;

(c)

on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.

(7) No proceedings for any offence which is an offence by virtue of this section may be instituted—

(a)

in England and Wales, except by or with the consent of the Director of Public Prosecutions;

(b)

in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

S-4 Definition of “interception” etc.

4 Definition of “interception” etc.

Interception in relation to telecommunication systems

(1) For the purposes of this Act, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if—

(a)

the person does a relevant act in relation to the system, and

(b)

the effect of the relevant act is to make any content of the communication available, at a relevant time, to a person who is not the sender or intended recipient of the communication.

For the meaning of “content” in relation to a communication, see section 261(6).

(2) In this section “relevant act”, in relation to a telecommunication system, means—

(a)

modifying, or interfering with, the system or its operation;

(b)

monitoring transmissions made by means of the system;

(c)

monitoring transmissions made by wireless telegraphy to or from apparatus that is part of the system.

(3) For the purposes of this section references to modifying a telecommunication system include references to attaching any apparatus to, or otherwise modifying or interfering with—

(a)

any part of the system, or

(b)

any wireless telegraphy apparatus used for making transmissions to or from apparatus that is part of the system.

(4) In this section “relevant time”, in relation to a communication transmitted by means of a telecommunication system, means—

(a)

any time while the communication is being transmitted, and

(b)

any time when the communication is stored in or by the system (whether before or after its transmission).

(5) For the purposes of this section, the cases in which any...

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