November 26, 2018
The Introduction to the Code of Practice explains that the Code relates to the exercise of functions conferred by virtue of Parts 3 and 4 of the Investigatory Powers Act 2016.
Section 2 provides guidance on the procedures to be followed when acquisition of communications data takes place under the provisions in Part 3 of the Act.
Section 3 provides guidance on the procedures to be followed when communications data is retained under Part 4 of the Act.
Sections 1, 2 and 4 apply to relevant public authorities and to telecommunications operators and postal operators.
Section 12 of the Act (with Schedule 2) abolishes or amends other information gathering powers, which provided for access to communications data without appropriate safeguards. Accordingly, relevant public authorities for the purposes of Part 3 should not use other statutory powers to obtain communications data from a postal or telecommunications operator unless that power:
- is authorised by a warrant or order issued by a person holding judicial office; or
- deals with telecommunications operators, postal operators, or a class of such operators and can be used either:
- in connection with the regulation of telecommunications operators, telecommunications services or telecommunication systems, or postal operators or services; or
- to acquire communications data relating to postal items crossing the UK border.
Such powers should only be used to obtain communications data from a telecommunications operator or postal operator where it is not possible for the public authority to obtain the communications data under the Act.
Relevant public authorities should also not require, or invite, any postal or telecommunications operator to disclose communications data by relying on any exemption to restrictions on disclosing personal data under relevant data protection legislation.
Sections 1, 3 and 4 of the Code are relevant to telecommunications operators and postal operators who have been given a data retention notice under Part 4.
The Act provides that persons exercising any functions to which the Code relates must have regard to the Code, although failure to comply with it does not, of itself, make a person liable to criminal or civil proceedings. The Act also provides that the Code is admissible in evidence in criminal and civil proceedings. To access the new Code, click here.