Home News Government safeguards governing revised investigatory powers come into effect

Government safeguards governing revised investigatory powers come into effect

by Brian Sims

The Conservative Government has commenced final provision in the Investigatory Powers Act 2016 subject to the double-lock safeguard requiring judicial approval. Warrants permitting the use of the most intrusive investigatory powers will now require the approval of a Judge. This marks the final step needed to implement the stringent ‘judicial double-lock’ safeguard created by the landmark Investigatory Powers Act 2016. The safeguard requires judicial approval in addition to existing authorisations before certain powers can be used.

The Government has now commenced the equipment interference provision for law enforcement agencies and wider public authorities – the final provision to require a warrant subject to the double-lock.

The Investigatory Powers Act overhauls the way in which investigatory powers are authorised and overseen. In addition to the double-lock, it created the role of the Investigatory Powers Commissioner to oversee the intelligence agencies, the police service and other public authorities’ use of investigatory powers.

Security Minister Ben Wallace said: “The terrorist attacks last year and the reckless use of a nerve agent in the UK earlier this year were stark reminders of the real and significant national security threats this country faces. We are also aware that serious and organised crime is costing this country at least £37 billion each year, let alone the devastating human impact. It’s essential that our law enforcement, security and intelligence agencies and wider public authorities have the powers they need to investigate and disrupt the most dangerous criminals and national security threats. The Investigatory Powers Act is world-leading legislation, providing strict safeguards and unprecedented oversight. The double-lock ensures that these vital tools are used in a way that’s both necessary and also proportionate.”

The Investigatory Powers Act brought together and updated existing powers that are available to law enforcement and the security and intelligence agencies. It created one new power allowing access to Internet connection records, which may be vital in confronting serious criminals, terrorists and hostile state activity in a digital age.

Separately, on 1 November, the Government introduced judicial authorisation of the retention of communications data. Legislation making provision for the independent authorisation of requests for the acquisition of communications data is now in place and those provisions will come into force next year.

Powers subject to judicial authorisation

Security Minister Ben Wallace

Security Minister Ben Wallace

Equipment interference allows authorised bodies, including law enforcement and the intelligence services, to interfere with equipment, such as computers and smart phones, in order to obtain communications, equipment data or other information from the device.

Where necessary and proportionate, this power is used to gain valuable intelligence in national security and serious and organised crime investigations and to help gather evidence for use in criminal prosecutions.

Interception is obtaining the content of a communication – such as a telephone call, an e-mail or a social media message – during its transmission or while stored on a telecommunications system. This power is a vital tool that helps law enforcement and the security and intelligence agencies to detect and prevent serious and organised crime, and also to protect national security.

Bulk personal datasets are sets of personal information about many people held on electronic systems such as the electoral roll, the majority of which will not be of any specific interest to the security and intelligence agencies. Their retention and examination by the security and intelligence agencies are essential in helping to identify subjects of interest or individuals who surface during an investigation, to establish links between individuals and groups and to understand a subject’s behaviour and connections better to quickly exclude the innocent. This enables the agencies to focus their attention on specific individuals or organisations that threaten our national security.

Bulk powers for interception, communications data acquisition and equipment interference provide the ability to collect large volumes of data which can be selected for further examination, and is crucial in enabling the security and intelligence agencies to investigate known, high-priority threats as well as identify emerging threats from individuals previously not known to them.

Ability to evade detection

Terrorists, criminals and hostile foreign intelligence services are increasingly sophisticated at evading detection by traditional means. Access to bulk data enables the security and intelligence agencies to obtain intelligence on overseas subjects of interest, identify threats here in the UK and establish and investigate link between known subjects of interest at pace.

Communications data (acquisition and retention) provides law enforcement, the agencies and other specified public authorities access to information about a communication – the who, where, when, how and with whom of a communication,but not what is written or said. This information is acquired from communications service providers who may also be required to retain the communications data.

Requests for communications data are made to identify the location of missing people or to establish links (through call records) between a suspect and a victim. It can be the only way in which to identify offenders, and particularly so where offences (such as fraud) have been committed online.

Liberty wins right to challenge bulk surveillance under Snoopers’ Charter

Liberty has defeated the Government’s attempt to put wide-ranging surveillance powers beyond scrutiny and won a right to proceed with its full challenge to the Investigatory Powers Act.

In a decision released on 29 November, the High Court agreed that Liberty should have the right to judicial review of the law, which gives a wide range of state agencies broad powers to collect electronic communications and records of Internet usage in bulk and without individualised suspicion, hack devices and create large data sets that include data of people not suspected of any crime or other wrongdoing.

The High Court rejected the claim that Liberty’s case was invalid.

This is the second part of Liberty’s challenge to the Investigatory Powers Act. Back in April, Liberty won the first part of this case. The High Court found the Government’s power to order private companies to store communications data (including Internet histories) so that state agencies can access it breaches citizens’ right to privacy.

The Government has since had to amend this part of the Investigatory Powers Act.

Liberty can now seek a judicial review of all grounds not previously ruled upon, and look to end what it refers to as “the Government’s intrusive and unnecessary bulk surveillance of everyone regardless of wrongdoing”. The case is expected to proceed in the High Court next year.

Megan Goulding, solicitor for Liberty, commented: “This is a major step forward in our ongoing fight to put an end to mass surveillance by the state and the latest in a series of important defeats on this subject for the Government. The Government must urgently reassess the invasively-wide powers it has to snoop on our lives and develop a proportionate surveillance regime that better balances public safety with respect for privacy.”

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