RIPA Part III consultation blog

3.4 Protected information means any electronic data, which, without the key to the data cannot, or cannot readily:

• be accessed, or
• be put into an intelligible form.

3.5 Section 49(1) of the Act describes various means by which protected information has come into, or may come into, the possession of any person within a public authority.

This includes information that has been, or is likely to be:

Within the scope of section 49(1)(a) of the Act:

• acquired by exercising a statutory power to seize, detain, inspect, search for property or to interfere with documents or other property;
  • for example, seized under a judicial search warrant under section 8 of the Police and Criminal Evidence Act 1984;
  • for example, disclosed in compliance with a judicial production order under Schedule 1 of the Police and Criminal Evidence Act 1984;

Within the scope of section 49(1)(b) of the Act:

• acquired by the exercise of a statutory power to intercept communications, for example under a warrant issued personally or expressly authorised by the Secretary of State under Chapter I of Part I of the Act;

Within the scope of section 49(1)(c) of the Act:

• acquired by undertaking conduct authorised under section 22(3) of the Act (authorised conduct to obtain communications data);
• disclosed as a result of the giving of a notice under section 22(4) of the Act (notice requiring disclosure of communications data);
• acquired by undertaking conduct authorised under Part II of the Act (whether an authorisation for carrying out directed surveillance under section 28, for carrying out intrusive surveillance under section 32, or for the conduct or the use of a covert human intelligence source under section 29);

Within the scope of section 49(1)(d) of the Act:

• provided to, or disclosed to, a public authority in the exercise of any statutory duty whether or not the provision or disclosure of information was requested;

Within the scope of section 49(1)(e) of the Act:

• acquired lawfully by any of the intelligence services^[1], the police, Serious Organised Crime Agency (SOCA) or HM Revenue and Customs (HMRC) without using statutory powers, including information voluntarily disclosed to a public authority by a member of the public.

• ^[1] The Security Service, the Secret Intelligence Service and GCHQ.

3.6 Section 49(1) provides by the words "has come in to the possession of any person .... or is likely to do so" that a public authority can seek permission to give a section 49 notice ('a notice') at the same time as seeking to exercise a statutory power to obtain the information or in anticipation of such action. This will occur in circumstances where there is an expectation that the information being sought is protected. For example an application for, and the issue of, a search warrant, production order or interception warrant may include reference to protected information likely to be seized, produced or intercepted.

3.7 A notice shall be given where a person has appropriate permission^[2] and reasonably believes that:

• ^[2] See Section 9 of this code.

• a key^[3] to the protected material is in possession of any person;

• ^[3] Examples of the sorts of material that can constitute 'a key' are described in paragraph 3.9.

• a disclosure requirement in respect of the protected information is necessary:
• in the interests of national security;^[4]

• ^[4] One of the functions of the Security Service is the protection of national security and in particular the protection against threats from terrorism. These functions extend throughout the United Kingdom, except in Northern Ireland where the lead responsibility for investigating the threat from terrorism related to the affairs of Northern Ireland lies with the Police Service of Northern Ireland. Where a disclosure requirement is considered necessary in the interests of national security a person in another public authority should not give a notice under the Act where the operation or investigation falls within the responsibilities of the Security Service, as set out above, except where that person is a member of a Special Branch or the Metropolitan Police Counter Terrorism Command, or where the Security Service has agreed a notice may be given by a member of another public authority in relation to an operation or investigation which would fall within the responsibilities of the Security Service.

• for the purpose of preventing or detecting crime;^[5]

• ^[5] Detecting crime includes establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed, the gathering of evidence for use in any legal proceedings and the apprehension of the person (or persons) by whom any crime was committed. See section 81(5) of the Act.

• in the interests of the economic well being of the United Kingdom;^[6]

• ^[6] Where, on the facts of the specific case, there is a connection with national security, original condition, or restored to a previously protected form, only momentarily or for a finite period of time.

• necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty;
• the imposition of such a requirement is proportionate to what is sought to be achieved by its imposition, and
• that it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice.