72
Investigatory Powers Act 2016 (c. 25)
Part 4 — Retention of communications data
and this expression therefore includes, in particular, internet connection
records.
Safeguards
88
Matters to be taken into account before giving retention notices
(1)
Before giving a retention notice, the Secretary of State must, among other
matters, take into account—
(a) the likely benefits of the notice,
(b) the likely number of users (if known) of any telecommunications
service to which the notice relates,
(c) the technical feasibility of complying with the notice,
(d) the likely cost of complying with the notice, and
(e) any other effect of the notice on the telecommunications operator (or
description of operators) to whom it relates.
(2)
Before giving such a notice, the Secretary of State must take reasonable steps to
consult any operator to whom it relates.
89
Approval of retention notices by Judicial Commissioners
(1)
In deciding whether to approve a decision to give a retention notice, a Judicial
Commissioner must review the Secretary of State’s conclusions as to whether
the requirement to be imposed by the notice to retain relevant communications
data is necessary and proportionate for one or more of the purposes falling
within paragraphs (a) to (j) of section 61(7).
(2)
In doing so, the Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matters referred to in subsection (1) with a sufficient
degree of care as to ensure that the Judicial Commissioner complies
with the duties imposed by section 2 (general duties in relation to
privacy).
(3)
Where a Judicial Commissioner refuses to approve a decision to give a
retention notice, the Judicial Commissioner must give the Secretary of State
written reasons for the refusal.
(4)
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to give a retention notice, the
Secretary of State may ask the Investigatory Powers Commissioner to decide
whether to approve the decision to give the notice.
90
Review by the Secretary of State
(1)
A telecommunications operator to whom a retention notice is given may,
within such period or circumstances as may be provided for by regulations
made by the Secretary of State, refer the notice back to the Secretary of State.
(2)
Such a reference may be in relation to the whole of a notice or any aspect of it.
(3)
In the case of a notice given to a description of operators—