CHAPTER 6: POWERS AND SAFEGUARDS
with telecommunications systems, which are defined very broadly as a system “for the
purpose of facilitating the transmission of communications by any means involving the
use of electrical or electro-magnetic energy.”19 WTA 2006 s48 may be used as a basis
to authorise the use of wireless telegraphy apparatus to obtain information “whether
sent by means of wireless telegraphy or not.” In principle, at least, both RIPA and
WTA 2006 might be used to intercept the same communications.
6.13.
As to the exercise of those powers, WTA 2006 ss 49(2)(a) and (b) provide that it may
not provide a basis for conduct that would be an offence under RIPA ss1(1) or (2), if
engaged in without lawful authority. GCHQ considers this to be a reference to the
definition of “lawful authority” in RIPA s1(5). Any interception under WTA 2006 is not
lawful if it could also have been carried out under RIPA Part I Chapter 1.20
6.14.
The position is clearer regarding the use of WTA 2006 to authorise access to
communications data. WTA 2006 s49(2)(c) provides that an interception authority
may not be given where it authorises conduct that could be authorised under RIPA
Part I Chapter 2.21
6.15.
A number of powers enable the contents of emails to be obtained when they are stored
on a mobile phone or computer. In theory, they might be described as powers to
“intercept” communications located on a server. However, it makes more sense to
describe them as mechanisms by which lawful access may be granted to view “stored
communications”, as described in s1(5)(c) of RIPA:
19
20
21
(a)
A judge may authorise a search order for private or commercial premises under
the Police and Criminal Evidence Act 1984 [PACE] ss15 and 16 or the Supreme
Courts Act 1981 s37. A search order will often include the right to access and
remove files from the computers on site.
(b)
Stored communications may also become available as a result of a production
order requiring an individual to provide a phone, computer or certain physical
files. The power to make production orders is set out in a number of different
statutory provisions, many of which deal with specific types of crime such as
drug trafficking or terrorism. PACE Schedule 1 also sets out a general power
for the police to issue a production order where they suspect an indictable
offence has been committed and a series of other conditions have been met.
(c)
The Terrorism Act 2000 provides an exception to the general requirement of
judicial authorisation. Schedule 7 to that Act grants port officers (generally the
police) a broad power to require persons passing through ports or airports to
provide their property – including a telephone or laptop – without judicial
authorisation. That property may be retained for up to a week, but information
RIPA s2(1).
One alternative reading would be that the WTA 2006 itself provides the “lawful authority” for conduct
outside of RIPA and that it may be relied upon to intercept material that could also have been
intercepted under RIPA.
Similar provision is made in the WTA 2006 s49(2)(d) with regard to conduct that is capable of
authorisation under RIPA Part II.
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