RIPA Part I Chapter II consultation

1.1 This code of practice relates to the powers and duties conferred or imposed under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 (‘the Act’). It provides guidance on the procedures to be followed when acquisition of communications data takes place under those provisions.

1.2 This code applies to relevant public authorities within the meaning of the Act: those listed in section 25 or specified in orders made by the Secretary of State.^[1]

• ^[1] For example, the Regulation of Investigatory Powers (Communications Data) Order 2003, SI No. 3172 and the Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2005, S.I. No. 1083

1.3 Relevant public authorities for the purposes of Chapter II of Part I of the Act should not:

• use other statutory powers to obtain communications data from a postal or telecommunications operator unless that power is conferred by a warrant or order issued by the Secretary of State or a person holding judicial office, or
  
• require, or invite, any postal or telecommunications operator to disclose communications data by exercising any exemption to the principle of non-disclosure of communications data under the Data Protection Act 1998 (‘the DPA’).
  

1.4 This code should be readily available to members of a relevant public authority involved in the acquisition of communications data and the exercise of powers to do so under the Act, and to communications service operators involved in the disclosure of communications data to public authorities under duties imposed by the Act.^[2]

• ^[2] See section 22(6) of the Act

1.5 Throughout this code an operator who provides a postal or telecommunications service is described as a communications service provider (‘CSP’). The meaning of telecommunications service is defined in the Act^[3] and extends to CSPs providing such services where the system for doing so is wholly or partly in the United Kingdom or elsewhere. This includes, for example, a CSP providing a telecommunications system to persons in the United Kingdom where communications data relating to that system is either, or both, processed and stored outside the United Kingdom.

• ^[3] Sections 2(1) and 81(1) of the Act defines ‘telecommunications service’ to mean any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service); and defines ‘telecommunications system’ to mean any system (including the apparatus comprised in it) which exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy.

1.6 The Act provides that the code is admissible in evidence in criminal and civil proceedings. If any provision of the code appears relevant to a question before any court or tribunal hearing any such proceedings, or to the Tribunal established under the Act^[4], or to one of the Commissioners responsible for overseeing the powers conferred by the Act, it must be taken into account.

• ^[4] See paragraphs 9.1 – 9.2

1.7 The exercise of powers and duties under Chapter II of Part I of the Act is kept under review by the Interception of Communications Commissioner (‘the Commissioner’) appointed under section 57 of the Act.

1.8 This code does not relate to the interception of communications nor to the acquisition or disclosure of the contents of communications. The Code of Practice on Interception of Communications issued pursuant to Section 71 of the Regulation of Investigatory Powers Act 2000 provides guidance on procedures to be followed in relation to the interception of communications.^[5]

• ^[5] ISBN 0-11-341281-9

1.9 Communications data (‘related communications data’^[6]) that is obtained directly as a consequence of the execution of an interception warrant is intercept product.

• ^[6] Section 20 of the Act defines ‘related communications data’ in relation to a communication intercepted in the course of its transmission, by means of a postal service or telecommunications system, to mean so much of any communications data (within the meaning of Chapter II of Part I of the Act) as –
  • (a) is obtained by, or in connection with, the interception; and
  • (b) relates to the communication or to the sender or recipient, or intended recipient, of the communications.

1.10 Any related communications data, and any other specific communications data (‘other related data’) derived directly from it, must be treated in accordance with the restrictions on the use of intercepted material and related communications data.^[7]

• ^[7] See sections 15, 17, 18 and 19 of the Act

1.11 Related communications data may be used as a basis for the acquisition of other related data for intelligence purposes^[8] only, if there is sufficient intercept product or non-intercept material available to a designated person to allow that person to consider the necessity and proportionality of acquiring the other related data. The application to the designated person and the resultant data acquired should be treated as product of the interception.

• ^[8] Section 81(5) of the Act qualifies the reference of preventing or detecting serious crime in section 5(3) – grounds for the issue of an interception warrant – to exclude gathering of evidence for use in any legal proceedings.

1.12 Related communications data may be used as a basis for the acquisition of other related data for use in legal proceedings provided that the related communications data does not identify itself as intercept product and there is sufficient non-intercept material available to the designated person to allow that person to consider the necessity and proportionality of acquiring the other related data. In practice it will be rare to achieve this. Consequently, it is best practice when undertaking the acquisition of other related data for use in legal proceedings that the provenance of such data is from a source other than conduct authorised by an interception warrant.

1.13 This code extends to the United Kingdom.^[9]

• ^[9] This Code and the provisions of Chapter II of Part I of the Act do not extend to the Crown Dependencies and British Overseas Territories.