Draft Technical Capability Regulations notified to European Commission following targeted consultation
The Home Office has notified the European Commission of regulations designed to help make companies maintain the technical capability to respond to warrants and authorisations from law enforcement, security and intelligence agencies.
The Investigatory Powers (Technical Capability) Regulations 2017 do not include any new powers, but relate to powers already set out in the Investigatory Powers Act 2016 which enable the Secretary of State to give a ‘Technical Capability Notice’ to a telecommunications operator in relation to interception, communications data or equipment interference.
The purpose of a ‘Technical Capability Notice’ is to ensure that, when a warrant or authorisation is served on or given to an operator, the company has the capability to provide assistance in giving effect to it both securely and quickly.
The use of these powers is vital in the fight against terrorism, crime and other national security threats.
Security Minister Ben Wallace stated: “Technical advances present ever-evolving opportunities for terrorists and criminals. These regulations will help to make sure that we maintain the capabilities needed to confront this challenge subject to strict safeguards.”
The regulations do not impose requirements on telecommunications operators, but do set out the specific obligations that may be imposed on operators in a ‘Technical Capability Notice’, including those which relate to maintaining the capability to remove encryption in response to a specific warrant or authorisation.
The move comes after a targeted consultation which included hearing views from telecommunications operators likely to receive a ‘Technical Capability Notice’, bodies that hold statutory functions in relation to operators (such as the Investigatory Powers Commissioner) and the Technical Advisory Board.
Following notification under the Technical Standards Directive, the regulations have been published and there will now be a three-month ‘standstill’ period, during which time they can be considered by the European Commission and Member States.
The secondary legislation will be subject to a debate and a vote in both the House of Lords and the House of Commons before such time that it can come into effect.