RIP Act

RIP Act Code of Practice for Public Consultation

The Home Office has produced, for public consultation, a draft Code of Practice for 'accessing communications data' under the Regulation of Investigatory Powers Act 2000 (RIPA). The draft contains guidance on the 'enhanced procedures' that must be followed before access to communications data can take place.

According to the Home Office: "The Regulation of Investigatory Powers Act 2000 (RIPA) updates the law on the interception of communications to take account of technological change such as the growth of the Internet. It also puts other intrusive investigative techniques on a statutory footing for the very first time; provides new powers to help combat the threat posed by rising criminal use of strong encryption; and ensures that there is independent judicial oversight of the powers in the Act."

The RIP Act, however, caused much controversy during its passage through Parliament. This was because of the unprecedented powers it would give to the police and secret service when accessing personal communications. The Act was also criticised for being in conflict with the Data Protection Act 1998 and the Human Rights Act 1998, amongst others.

The main purpose of the Act is to ensure that the relevant investigatory powers are used in accordance with human rights. These powers are:

the interception of communications;
the acquisition of communications data (eg billing data);
intrusive surveillance (on residential premises/in private vehicles);
covert surveillance in the course of specific operations;
the use of covert human intelligence sources (agents, informants, undercover officers);
access to encrypted data.

For each of the powers above, the Act will ensure that the law clearly covers the purposes for which they may be used; which authorities can use the powers; who should authorise each use of the power; the use that can be made of the material gained; independent judicial over sight; and a means of redress for the individual.

The Act will work in conjunction with existing legislation, in particular the Intelligence Services Act 1994, the Police Act 1997 and the Human Rights Act 1998.

In the Home Office press release it states that: "The Act updates and increases the safeguards on obtaining communications data. In future, in order to obtain data an authorised person must meet a test of 'necessity' and consider the conduct involved to be proportionate. Data may only be sought if necessary for 'specific purposes' these may be for example:

in the interests of national security;
for the purpose of preventing or detecting crime or preventing disorder;
in the interests of public safety.

"For an action to be necessary in a democratic society it must pursue a legitimate policy aim, fulfil a pressing social need and above all be proportionate to that policy aim."

The Code lays down the guidelines that public authorities listed in section 25(1) of the Act should follow when accessing communications data. This relates to the powers and duties conferred or imposed under Chapter II of Part I of the Act. It provides guidance on the procedures that must be followed before access to communications data can take place under those provisions.

Communications data does not include the contents of any communication itself, for example, a list of telephone numbers can reasonably be seen as just that and, therefore, is defined as communications data, it does not give any indication of what might have been said during a conversation.

What was said during a particular communication, eg a telephone conversation, is defined as communications content - it remains strict policy that the content of communications can only be obtained under an interception warrant personally authorised by the Secretary of State.

The Code of Practice is thought to be essential if the Act is to be implemented as originally intended. That is to lay down guidelines for the prevention of the abuse of civil rights. That said, however, s.72 (2) of the Act states that: "A failure on the part of any person to comply with any provision of a code of practice...shall not of itself render him liable to any criminal or civil proceedings." Although it shall be admissible as evidence in any criminal or civil proceedings.

The press release continues: "The draft Code of Practice on Accessing Communications Data will govern the conduct of law enforcement and public bodies when obtaining information relating to the use of postal or telecommunication services, for example telephone billing information."

Bob Ainsworth, the Home Office minister in charge, said: "As we implement the Act's provisions, we are working with communication services providers to ensure that they are enacted in partnership with them. Today's consultation reiterates our commitment to consult in this important area. We welcome comments on all aspects of this draft code from industry, law enforcement agencies and anyone else who has a view on its implementation."

Later this year RIPA will be putting access to communications data, e.g. telephone billing information, onto a formal and regulated footing. This is in addition to more legislation which will be implemented in consultation with communication services providers.

The consultation period for the draft Code of Practice for Accessing Communications Data ends on Friday 2 November 2001.