"(1). A person engaged in the running of a public telecommunications
system who otherwise than in the course of his duty -(a) intentionally intercepts a message sent by means of that system; or
(b) where a message so sent has been intercepted, intentionally
discloses to any person the contents of that message, shall be guilty of
an offence.
(2). A person engaged in the running of a public telecommunication
system who otherwise than in the course of his duty intentionally
discloses to any person the contents of any statement of account
specifying the telecommunications services provided for any other
person by means of that system shall be guilty of an offence.
(3). Subsection (1) above does not apply to anything done in
obedience to a warrant under the hand of the Secretary of State; and
paragraph (b) of that subsection and subsection (2) above do not apply
to any disclosure in connection with the investigation of any criminal
offence or for the purposes of any criminal proceedings."
30
S.45 therefore recognised the lawfulness of obedience to an intercept warrant
under the hand of the Secretary of State and established a prohibition
on disclosing the contents of a statement of account specifying the
telecommunication services provided for any other person "otherwise than in
the course of his duty".
31
As Mr de la Mare acknowledged, the Secretary of State could not secure
compulsory disclosure of information specifying the telecommunications
services provided to a subscriber ("billing records") unless there was a
statutory power which imposed on telecommunications providers a duty to do
so.
32
The only available power was to be found in s. 94(1) and (2). S. 94(3)
imposed a duty on the person to whom a direction had been given to comply
with it:
"(3). A person to whom this section applies shall give effect to any
direction given to him by the Secretary of State under this section,
notwithstanding any other duty imposed on him under this Act."
33
The clear words of s. 94(1) to (3), read with s. 45(2), empowered the Secretary
of State to direct telecommunications providers to provide billing and
subscriber records to the Security Service and GCHQ in the interests of
national security or foreign relations and required the telecommunications
providers to comply with the direction. Nothing in the context available to
Parliament would have necessitated any implied limitation on that right and
duty: if the Secretary of State could, by a warrant, require telecommunications
providers to intercept, or to facilitate the interception by the Security Service
and GCHQ of telephone communications, there was no reason to construe the
statutory power and duty under s. 94 so as to exclude the lesser intrusion
effected by the disclosure of communications data to the Secretary of State.
14