25
The relevant part of the definition of "Traffic data" is contained in s.21(6)(a)
and (b):
"(6). In this section "Traffic data", in relation to any communication,
means
(a) any data identifying, or purporting to identify, any person,
apparatus or location to or from which the communication is or may
be transmitted,
(b) any data identifying or selecting, or purporting to identify or select,
apparatus through which, or by means of which, the communication is
or may be transmitted…."
26
Communications data, therefore, comprises, or includes, the date and time on
which a call or electronic communication is made and received, the parties to
it, the apparatus by which it is made and received and, in the case of a mobile
telephone communication, the location from which it is made and in which it
is received. It can include billing records and subscriber information. Just
about the only information not included is the content of communications.
27
There is a detailed statutory scheme under which communications data can be
lawfully obtained and disclosed, set out in Chapter II of Part I RIPA. The
Claimant’s case is that the obtaining of communications data is only lawful
under these provisions. The Respondents' case is that communications data
may also lawfully be provided to the Security Service and GCHQ under a
direction given by the Secretary of State under s. 94 of the 1984 Act.
28
The starting point must be to analyse the power granted to a Secretary of State
under s. 94 when it was originally enacted. The Bill received Royal assent on
12 April 1984. The Act and s.94 should be set in context. In 1984 the only
commercially available telecommunications services in the United Kingdom
were by landline. The first commercial mobile telephone call was made on 1
January 1985 via Cellnet. There was no internet. The first dial-up service was
introduced in March 1992. The Foreign Secretary and the Home Secretary
had, since the introduction of landline telephones, been empowered under the
royal prerogative to issue personally warrants to intercept, via tapping,
landline telephone calls. The only communications data held by
telecommunications operators was subscriber information and call records
from which statements of account were prepared to send to subscribers. Apart
from telephone numbers which were ex-directory, subscriber information was
publicly available in telephone directories. The only communications data
which the Security Service or GCHQ (the existence of which was not formally
acknowledged) might have been expected to wish to acquire was subscriber
information for ex-directory numbers and call records, to enable them to fulfil
their (then) primary defensive tasks of counterespionage (against the Soviet
Union and its satellites) and counter-terrorism (against Northern Ireland
terrorists).
29
This context was also the setting for s. 45 of the 1984 Act, which as originally
enacted provided (in material part):
13