2013 Annual Report of the Interception of Communications Commissioner
4.9
Necessity. The mechanism by which a DP may give authority to obtain
communications data requires that person to believe that it is necessary to obtain it for
one or more of the statutory purposes set out in section 22(2) of RIPA 2000. These are:
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in the interests of national security;
for the purpose of preventing or detecting crime or of preventing disorder;
in the interests of the economic wellbeing of the United Kingdom;
in the interests of public safety;
for the purpose of protecting public health;
for the purpose of assessing or collecting any tax, duty, levy or other imposition,
contribution or charge payable to a government department;
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; or
for any purpose (not falling within the above which is specified for the purpose
of this subsection by an order made by the Secretary of State – see paragraph
2.2 of the Code of Practice for these).
4.10 Parliament prescribed restrictions on the statutory purposes for which public
authorities may acquire communications data and also on the type of data that can
be acquired. For example, local authorities can only acquire service use and subscriber
information for the purpose of “preventing or detecting crime or of preventing disorder.”
4.11 Annex A provides details of the types of data and the statutory purposes under
which each public authority can acquire that data in tabulated form.
4.12 Proportionality. A DP is forbidden from approving an application for
communications data unless he believes that obtaining the data in question, by the
conduct authorised or required, is proportionate to what is sought to be achieved by
so obtaining the data. Thus every application to acquire communications data has to
address proportionality explicitly.
4.13 A judgment whether it is proportionate to authorise the acquisition of
communications data requires holding a balance between (a) the necessity to engage
in potentially intrusive conduct and (b) the anticipated amount and degree of intrusion.
The judgment has to consider whether the information which is sought could reasonably
be obtained by other less intrusive means. Applications for communications data are
refused (or not applied for) where it is judged that the necessity does not outweigh the
intrusion. An application is more likely to be granted for a mobile telephone which a
suspect is known to use for criminal purposes than if the telephone may also be used by
other members of the target’s family as well. That said, it is unavoidable that unconnected
and intrusive data may be acquired. Judging the likely intrusion in advance is not an
exact science.
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