The Regulation of Investigatory Powers Act (RIPA) 2000 – the legislation governing communications data – “needs a complete overhaul”. That’s the somewhat damning conclusion of the latest Home Affairs Select Committee report.
Chaired by Keith Vaz MP, the Committee acknowledges the operational need for secrecy both during and after investigations such that investigative techniques in the broader sense are not disclosed. However, there “has to be proper oversight and scrutiny” and the Committee recommends the Home Office uses its current review of the RIPA Code to “ensure that law enforcement agencies discharge their RIPA powers properly”.
The Rt Hon Sir Paul Kennedy – the Interception of Communications Commissioner – launched an inquiry back in October to determine whether the acquisition of communications data had been used to identify journalistic sources. Sir Paul wrote to all chief constables and directed them, under Section 58(1) of RIPA, to provide him with details of every investigation that had employed powers under Chapter 2 of RIPA (Part One) to acquire such data.
The Communications Data Code of Practice was drafted eight years ago and contains no advice on dealing with professions that handle privileged information nor any guidelines on the use of confidential Helplines.
“RIPA is not fit for purpose,” suggests Keith Vaz. “We [the Home Affairs Select Committee] were astonished that law enforcement agencies have failed to routinely record the professions of individuals who’ve had their communications data accessed under the legislation. Using RIPA to access the telephone records of journalists is wrong. This practice must cease. It deters whistle-blowers from coming forward.”
As far as Vaz and his Committee colleagues are concerned, the recording of information under RIPA is “lamentably poor” with the whole process appearing “secretive and disorganised” and bereft of studious monitoring in terms of what data is being destroyed and what’s actually being retained.
When a senior Parliamentary Committee states that the current RIPA legislation is not fit for purpose it’s an observation that simply cannot be ignored. The law is seemingly out of date, oversight appears to be weak and the recording of ways in which the powers enshrined in RIPA are used is – as Big Brother Watch director Emma Carr asserts – “patchy” at best.
Indeed, Carr continues: “The conclusion of the Committee that the level of secrecy surrounding the use of these powers is permitting investigations deemed ‘unacceptable in a democracy’ should make the defenders of those same powers sit up and take notice. At present, the inadequacy and inconsistency of the records being kept by public authorities regarding the use of these powers is woefully inadequate.”
Similarly, Isabella Sankey – director of policy at Liberty – believes that we need urgent safeguards in place to prevent valuable data from being accessed without judicial warrant.
Alongside RIPA, one wonders if the new Counter-Terrorism and Security Bill will be seen as a ‘Snoopers’ Charter’? Let’s hope not. It’s legislation that’s much needed.
Brian Sims BA (Hons) Hon FSyI, Editor, Risk UK