Part 2

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Part 2

Post  Wendy Cockcroft on Sun Jun 17, 2012 11:19 am

PART 2: REGULATORY REGIME FOR OBTAINING DATA

Authorisations for obtaining data

Authorisations by police and other relevant public authorities

(1) Subsection (2) applies if a designated senior officer of a relevant public authority believes in respect of communications data (“Part 2 data”)—
(a) that it is necessary to obtain the data for a permitted purpose,
(b) that it is necessary to obtain the data—
(i) for the purposes of a specific investigation or a specific operation, or
(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of communications data, and
(c) that the conduct authorised by the authorisation is proportionate to what is sought to be achieved.

(2) The designated senior officer may grant an authorisation for—
(a) the designated senior officer, or
(b) persons holding offices, ranks or positions with the same relevant public authority as the designated senior officer, to engage in any conduct in relation to a telecommunication system, or data derived from a telecommunication system, for obtaining the data from any person (“section 9(2) conduct”).

(3) Section 9(2) conduct may, in particular, consist of an authorised officer—
(a) obtaining the Part 2 data themselves from any person with the consent of that person,
(b) asking any person whom the authorised officer believes is, or may be, in possession of the Part 2 data to disclose it to a person identified by, or in accordance with, the authorisation,
(c) asking any person whom the authorised officer believes is not in possession of the Part 2 data but is capable of obtaining it, to obtain it and disclose it to a person identified by, or in accordance with, the authorisation, or
(d) requiring by notice a telecommunications operator—
(i) whom the authorised officer believes is, or may be, in possession of the Part 2 data to disclose the data to a person identified by, or in accordance with, the authorisation, or
(ii) whom the authorised officer believes is not in possession of the Part 2 data but is capable of obtaining the data, to obtain it and disclose it to a person identified by, or in accordance with, the authorisation.

(4) An authorisation may, in particular, authorise any obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of Part 2 data.

(5) An authorisation—
(a) may not authorise any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system, and
(b) may not authorise an authorised officer to ask or require, in the circumstances mentioned in subsection (3)(b), (c) or (d), a person to disclose the Part 2 data to any person other than—
(i) an authorised officer, or
(ii) a person holding an office, rank or position with the same relevant public authority as an authorised officer.

(6) For the purposes of this section it is necessary to obtain communications data for a permitted purpose if it is necessary to do so—
(a) in the interests of national security,
(b) for the purpose of preventing or detecting crime or of preventing disorder,
(c) for the purpose of preventing or detecting any conduct in respect of which a penalty may be imposed under section 123 or 129 of the Financial Services and Markets Act 2000 (civil penalties for market abuse),
(d) in the interests of the economic well-being of the United Kingdom,
(e) in the interests of public safety,
(f) for the purpose of protecting public health,
(g) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department,
(h) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health,
(i) to assist investigations into alleged miscarriages of justice, or
(j) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—
(i) to assist in identifying P, or
(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition.

(7) The Secretary of State may by order amend subsection (6) so as to add to or restrict the permitted purposes.

(8) See section 25 for the way in which this Part applies to postal operators and postal services.

Form of authorisations and authorised notices

(1) An authorisation must specify—
(a) the conduct that is authorised, and
(b) the Part 2 data in relation to which the conduct is authorised.

(2) An authorisation must specify—
(a) the matters falling within section 9(6) by reference to which it is granted, and
(b) the office, rank or position held by the person granting it.

(3) An authorisation which authorises a person to impose requirements by notice on a telecommunications operator must specify the nature of the requirements that are to be imposed but need not specify the other contents of the notice.

(4) The notice itself—
(a) must specify—
(i) the office, rank or position held by the person giving it,
(ii) the requirements that are being imposed, and
(iii) the telecommunications operator on whom the requirements are being imposed, and
(b) must be given in writing or (if not in writing) in a manner that produces a record of its having been given.

(5) An authorisation to which section 11(1) applies must be granted in writing.
(6) Any other authorisation must be granted in writing or (if not in writing) in a manner that produces a record of its having been granted.

Judicial approval for certain authorisations

(1) An authorisation granted by a relevant person is not to take effect until such time (if any) as the relevant judicial authority has made an order approving the grant of the authorisation.

(2) The relevant public authority with which the relevant person holds an office, rank or position—
(a) may apply to the relevant judicial authority for such an order, but
(b) need not give notice of the application to—
(i) any person to whom the authorisation which is the subject of the application relates, or
(ii) such a person’s legal representatives.

(3) The relevant judicial authority may give approval under this section to the granting of an authorisation if, and only if, the relevant judicial authority is satisfied that—
(a) at the time of the grant—
(i) there were reasonable grounds for believing that the requirements of section 9(1) were satisfied in relation to the authorisation, and
(ii) the relevant conditions were satisfied in relation to the authorisation, and
(b) at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 9(1) are satisfied in relation to the authorisation.

(4) For the purposes of subsection (3) the relevant conditions are—
(a) in relation to any grant by an individual holding an office, rank or position in a local authority in England, Wales or Scotland, that—
(i) the individual was a designated senior officer,
(ii) the grant was not in breach of any restrictions imposed by virtue of section 17, and
(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied,
(b) in relation to a grant, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—
(i) the individual was a designated senior officer,
(ii) the grant was not in breach of any restrictions imposed by virtue of section 17, and
(iii) any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and
(c) in relation to any other grant by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(5) Where, on an application under this section, the relevant judicial authority refuses to approve the grant of the authorisation concerned, the relevant judicial authority may make an order quashing the authorisation.

(6) In this section—
“Northern Ireland excepted or reserved matter” means an excepted or reserved matter (within the meaning of section 4(1) of the Northern Ireland Act 1998), “Northern Ireland transferred matter” means a transferred matter (within the meaning of section 4(1) of the Act of 1998), “relevant judicial authority” means—
(a) in relation to England and Wales, a justice of the peace,
(b) in relation to Scotland, a sheriff, and
(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland, “relevant person” means—
(a) an individual holding an office, rank or position in a local authority in England, Wales or Scotland,
(b) also, in relation to a grant for any purpose relating to a Northern Ireland excepted or reserved matter, an individual holding an office, rank or position in a district council in Northern Ireland, and
(c) also, in relation to any grant of a description that may be prescribed for the purposes of this subsection by an order made by the Secretary of State or every grant if so prescribed, a person of a description so prescribed.

(7) No order of the Secretary of State may be made under this section so far as it makes provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a Northern Ireland transferred matter without being ancillary to other provision (whether in the Act or previously enacted) which deals with a Northern Ireland excepted or reserved matter.

12 Duration and cancellation of authorisations

(1) An authorisation ceases to have effect at the end of the period of one month beginning with the date on which it is granted.

(2) An authorisation may be renewed at any time before the end of that period by the grant of a further authorisation.

(3) Subsection (1) has effect in relation to a renewed authorisation as if the period of one month mentioned in that subsection did not begin until the end of the period of one month applicable to the authorisation that is current at the time of the renewal.

(4) A designated senior officer who has granted an authorisation must cancel it if the designated senior officer is satisfied that the position is no longer as mentioned in section 9(1)(a), (b) and (c).

(5) The Secretary of State may by order provide for the person by whom any duty imposed by subsection (4) is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it.

(6) Such an order may, in particular, provide for the person on whom the duty is to fall to be a person appointed in accordance with the order.

13 Duties of telecommunications operators in relation to authorisations

(1) It is the duty of a telecommunications operator who is obtaining or disclosing communications data in response to a request or requirement for Part 2 data in pursuance of an authorisation to obtain or disclose the communications data in a way that minimises the amount of data that needs to be processed for the purpose concerned.

(2) It is the duty of a telecommunications operator on whom a requirement is imposed by notice given in pursuance of an authorisation to comply with that requirement.

(3) A person who is under a duty by virtue of subsection (1) or (2) is not required to do anything in pursuance of that duty that it is not reasonably practicable for that person to do.

(4) The duty imposed by subsection (1) or (2) is enforceable by the Secretary of State by civil proceedings for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.

Filtering arrangements for acquisition of data

14 Filtering arrangements for obtaining data

(1) The Secretary of State may establish, maintain and operate arrangements for the purposes of—
(a) assisting a designated senior officer to determine whether, in any case, the officer believes as mentioned in section 9(1)(a), (b) and (c) in relation to the grant of an authorisation in respect of communications data, or
(b) facilitating the lawful, efficient and effective obtaining of Part 2 data from any person by relevant public authorities in pursuance of an authorisation.

(2) Arrangements under subsection (1) (“filtering arrangements”) may, in particular, involve the obtaining of Part 2 data in pursuance of an authorisation by means of—
(a) a request to the Secretary of State to obtain the data on behalf of an
authorised officer, and
(b) the Secretary of State—
(i) obtaining the data or data from which the data may be derived,
(ii) processing the data or the data from which it may be derived
(and retaining data temporarily for that purpose), and (iii) disclosing the Part 2 data to the person identified for this purpose by, or in accordance with, the authorisation.

(3) Filtering arrangements may, in particular, involve the generation or use by the Secretary of State of information—
(a) for the purpose mentioned in subsection (1)(a), or
(b) for the purposes of—
(i) the support, maintenance, oversight, operation or administration of the arrangements, or
(ii) the functions of the Interception of Communications Commissioner mentioned in subsection (4).

(4) Filtering arrangements must involve the generation and retention of such information or documents as the Interception of Communications Commissioner considers appropriate for the purposes of the functions of the Commissioner in relation to the arrangements under section 57(2)(e) of the Regulation of Investigatory Powers Act 2000 (review functions: see section 22 of this Act).

[size]15 Use of filtering arrangements in pursuance of an authorisation[/size]

(1) This section applies in relation to the use of the filtering arrangements in pursuance of an authorisation.

(2) The filtering arrangements may be used—
(a) to obtain and disclose Part 2 data in pursuance of an authorisation, only if the authorisation specifically authorises the use of the arrangements to obtain the data,
(b) to process data in pursuance of an authorisation (and to retain the data temporarily for that purpose), only if the authorisation specifically authorises processing data of that description under the arrangements (and their temporary retention for that purpose).

(3) The authorisation must record the designated senior officer’s decision as to—
(a) whether the Part 2 data to be obtained and disclosed in pursuance of the authorisation may be obtained and disclosed by use of the filtering arrangements,
(b) whether the processing of data under the filtering arrangements (and its temporary retention for that purpose) is authorised,
(c) if the processing of data under the filtering arrangements is authorised, the description of data that may be processed.

(4) A designated senior officer must not authorise—
(a) use of the filtering arrangements, or
(b) processing under the filtering arrangements, unless satisfied that what is authorised is proportionate in relation to what is sought to be achieved.

16 Duties in connection with operation of filtering arrangements

(1) The Secretary of State must secure—
(a) that no authorisation data is obtained or processed under the filtering arrangements except for the purposes of an authorisation,
(b) that data which—
(i) has been obtained or processed under the filtering arrangements, and
(ii) is to be disclosed in pursuance of an authorisation or for the purpose mentioned in section 14(1)(a), is disclosed only to the person to whom the data is to be disclosed in
pursuance of the authorisation or (as the case may be) to the designated senior officer concerned,
(c) that any authorisation data which is obtained under the filtering arrangements in pursuance of an authorisation is immediately destroyed in such a way that it can never be retrieved—
(i) when the purposes of the authorisation have been met, or (ii) if at any time it ceases to be necessary to retain the data for the purposes or purpose concerned.

(2) The Secretary of State must secure that data (other than authorisation data) which is retained under the filtering arrangements is disclosed only—
(a) for the purpose mentioned in section 14(1)(a),
(b) for the purposes of support, maintenance, oversight, operation or administration of the arrangements,
(c) to the Interception of Communications Commissioner for the purposes of the functions of the Commissioner mentioned in section 14(4), or
(d) otherwise as authorised by law.

(3) The Secretary of State must secure—
(a) that only the Secretary of State and individuals authorised by the Secretary of State are permitted to read, obtain or otherwise process data for the purposes of support, maintenance, oversight, operation or administration of the filtering arrangements, and
(b) that no other persons are permitted to access or use the filtering arrangements except in pursuance of an authorisation or for the purpose mentioned in section 14(1)(a).

(4) The Secretary of State must—
(a) put in place and maintain an adequate security system to govern access to, and use of, the filtering arrangements and to protect against any abuse of the power of access, and
(b) impose measures to protect against unauthorised or unlawful data retention, processing, access or disclosure.

(5) The Secretary of State must—
(a) put in place and maintain procedures (including the regular testing of relevant software and hardware) to ensure that the filtering arrangements are functioning properly, and
(b) report, as soon as possible after the end of each calendar year, to the Interception of Communications Commissioner about the functioning of the filtering arrangements during that year.

(6) A report under subsection (5)(b) must, in particular, contain information about the destruction of authorisation data during the calendar year concerned.

(7) If the Secretary of State believes that significant processing errors have occurred giving rise to a contravention of any of the requirements of this Part, the Secretary of State must report that fact immediately to the Interception of Communications Commissioner.

Supplementary provisions

17 Restrictions on exercise of powers

(1) A designated senior officer of a local authority in England, Wales or Scotland may not grant an authorisation for obtaining—
(a) traffic data, or
(b) any communications data generated by a telecommunications operator in pursuance of a requirement imposed by or under an order under section 1.

(2) The Secretary of State may by order impose restrictions on the granting of authorisations by designated senior officers.

(3) An order under this section may, in particular, impose restrictions—
(a) on the authorisations that may be granted by a designated senior officer with a specified public authority, or
(b) on the circumstances in which, or the purposes for which, such authorisations may be granted by a designated senior officer.

(4) An order under this section may, in particular, as regards authorisations impose restrictions on—
(a) the public authorities that may use the filtering arrangements,
(b) the permitted purposes for which the filtering arrangements may be used,
(c) the data that may be processed by means of the filtering arrangements.

18 Lawfulness of conduct authorised by this Part

(1) Conduct is lawful for all purposes if—
(a) it is conduct in which any person is authorised to engage by an authorisation, and
(b) the conduct is in accordance with, or in pursuance of, the authorisation.

(2) A person (whether or not the person so authorised) shall not be subject to any civil liability in respect of conduct that—
(a) is incidental to, or is reasonably undertaken in connection with, conduct that is lawful by virtue of subsection (1), and
(b) is not itself conduct for which an authorisation or warrant—
(i) is capable of being granted under any of the enactments mentioned in subsection (3), and
(ii) might reasonably have been expected to have been sought in the case in question.

(3) The enactments referred to in subsection (2)(b)(i) are—
(a) an enactment contained in this Part,
(b) an enactment contained in the Regulation of Investigatory Powers Act 2000,
(c) an enactment contained in Part 3 of the Police Act 1997 (powers of the police and of customs officers), or
(d) section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services).

19 Collaborating police forces in England and Wales

(1) Subsections (2) and (3) apply if—
(a) a person is a designated senior officer by reference to an office, rank or position with an England and Wales police force, and
(b) the chief officer of police of that force has entered into a collaboration agreement under section 22A of the Police Act 1996 which contains force collaboration provision.

(2) The designated senior officer may grant an authorisation for persons holding offices, ranks or positions with a collaborating force to engage in any section 9(2) conduct if the designated senior officer believes as mentioned in section 9(1)(a), (b) and (c).

(3) In its application to such conduct, section 9(5)(b) has effect as if the reference to a person holding an office, rank or position with the same relevant public authority as an authorised officer included a reference to a person holding an office, rank or position with the same relevant public authority as the designated senior officer.

(4) For the purposes of this section a police force is a collaborating force if—
(a) its chief officer of police is a party to the agreement mentioned in subsection (1)(b), and
(b) the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be granted authorisations by the designated senior officer or (as the case may be) to be identified by, or in accordance with, such authorisations.

(5) In this section—

“England and Wales police force” means—
(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London),
(b) the metropolitan police force, or
(c) the City of London police force, “force collaboration provision” has the meaning given by section 22A(2)(a) of that Act.

20 Certain transfer and agency arrangements with public authorities

(1) The Secretary of State may by order provide for—
(a) any function exercisable by the Secretary of State under sections 14 to 16 to be exercisable instead by a designated public authority, or
(b) any function under sections 14 to 16 exercisable by a designated public authority to be exercisable instead by another designated public authority or the Secretary of State.

(2) The Secretary of State may by order modify any enactment about a public authority for the purpose of enabling or otherwise facilitating any function exercisable by the Secretary of State under this Part to be exercisable on behalf of the Secretary of State by the authority concerned.

(3) An order under subsection (2) does not affect the Secretary of State’s responsibility for the exercise of the functions concerned.

(4) Subsection (2) does not apply in relation to any function of the Secretary of State of making orders.

(5) Schedule 1 (which contains further safeguards and provisions supplementing this section) has effect.

(6) In this section and Schedule 1—
“designated public authority” means a public authority designated by an order of the Secretary of State, “modify” includes amend, repeal or revoke.

21 Interpretation of Part 2

(1) In this Part—
“authorisation” means an authorisation under section 9 or 19, “authorisation data”, in relation to an authorisation, means communications data that is, or is to be, obtained in pursuance of the authorisation or any data from which that data is, or may be, derived, “authorised officer” means a person who—

(a) is authorised by an authorisation to engage in any section 9(2) conduct, and
(b) either—
(i) is the designated senior officer or holds an office, rank or position with the same relevant public authority as the designated senior officer, or
(ii) in the case of an authorisation under section 19, holds an office, rank or position with a collaborating force (within the meaning of that section), “designated senior officers” means individuals holding such ranks, offices or positions with relevant public authorities as are specified by order of the Secretary of State, “filtering arrangements” means any arrangements under section 14(1), “GCHQ” has the same meaning as in the Intelligence Services Act 1994, “intelligence service” means the Security Service, the Secret Intelligence
Service or GCHQ,

“local authority in England” means—
(a) a district or county council in England,
(b) a London borough council,
(c) the Common Council of the City of London in its capacity as a local authority, or
(d) the Council of the Isles of Scilly, “local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994, “local authority in Wales” means any county council or county borough council in Wales, “member of a police force”, in relation to the Royal Navy Police, the Royal Military Police or the Royal Air Force Police, does not include any member of that force who is not for the time being attached to, or serving with, that force or another of those forces, “Part 2 data” has the meaning given by section 9(1),

“police force” means any of the following—
(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London),
(b) the metropolitan police force,
(c) the City of London police force,
(d) the Police Service of Scotland,
(e) the Police Service of Northern Ireland,
(f) the Ministry of Defence Police,
(g) the Royal Navy Police,
(h) the Royal Military Police,
(i) the Royal Air Force Police,
(j) the British Transport Police,

“relevant public authority” means any of the following—
(a) a police force,
(b) the Serious Organised Crime Agency,
(c) Her Majesty’s Revenue and Customs,
(d) any of the intelligence services,
(e) any public authority designated for the purposes of this Part by
order of the Secretary of State,

“section 9(2) conduct” has the meaning given by section 9(2).
(2) In this Part references to crime are references to conduct that—
(a) constitutes one or more criminal offences, or
(b) is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences.
(3) For the purposes of this Part detecting crime shall be taken to include—
(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed, and
(b) the apprehension of the person by whom any crime was committed.

(4) References in this Part to an individual holding an office or position with a public authority include any member, official or employee of the authority.

(5) For the purposes of this Part information required for the purposes of supporting the filtering arrangements includes information which (to any extent) explains authorisation data.

(6) Other expressions are defined generally for the purposes of this Part: see section 28.

(7) The Secretary of State may by order provide for a person who is a relevant public authority otherwise than by virtue of a designation under paragraph (e) of the definition of “relevant public authority” to cease to be a relevant public authority.

(8) The Secretary of State may by order make such amendments, repeals or revocations in this or any other enactment as the Secretary of State considers appropriate in consequence of—
(a) a person ceasing to be designated under paragraph (e) of the definition of “relevant public authority”, or
(b) an order under subsection (7).
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