CHAPTER 6: POWERS AND SAFEGUARDS
6.92.
The IPT also considered the use and safeguards applying to data, once it had been
received from overseas. The security and intelligence agencies disclosed that
information that is covered by a warrant, but cannot be obtained by the UK
Government, are “subject to the same internal rules and safeguards as the same
categories of content or data, when they are obtained directly by the Intelligence
Services as a result of interception under RIPA”.101
6.93.
However, the IPT expressed its concern that the same principle would not apply to
information requested on the second ground: data that it was not feasible to collect
under RIPA. As the Tribunal noted, s16 would not (automatically) apply in those
cases. In its December judgement, the IPT directed that “there ought to be introduced
a procedure” addressing this issue.102 The Tribunal’s judgment in February stated that
equivalent safeguards are now in place for material that may be obtained via that
second route.103
6.94.
The Tribunal also considered the nature and operation of confidential procedures
governing the use of data “below the waterline” that it considered were adequately
“signposted” by the disclosures and by other material already in the public domain. 104
The Claimants argued that that practice was improper105 but the IPT disagreed, and
the issue is now before the ECtHR.
Extra-territorial reach of RIPA
6.95.
It is increasingly common that content and communications data are located outside
the UK but not in the possession of a foreign state or its security and intelligence
agencies. Most commonly that material is in the possession of overseas service
providers, presenting unique jurisdictional challenges when UK law enforcement
agencies wish to gain access to those data. DRIPA 2014 s4 seeks to address that
problem by spelling out the extraterritorial effect of RIPA ss11, 12 and 22.106
6.96.
In respect of interception warrants, under RIPA s11(4), any person is obliged to take
steps to give effect to a warrant served on them “whether or not the person is in the
United Kingdom”. That person is not required to take steps which “it is not reasonably
practicable for him to take”, and consideration will be given to the requirements or
restrictions under the law of the country or territory in which he resides (s11(5A)).
However, if a person “knowingly fails to comply” with these duties, they may be guilty
of an offence (s11(7)). Enforcement, including persons outside of the UK, may be
effected through the civil courts.
6.97.
RIPA s12 is also amended by DRIPA 2014 so that the Secretary of State can by order
impose an obligation on a person, whether or not that person is within the UK, who is
providing public postal services or public telecommunications services to secure that
101
102
103
104
105
106
Liberty IPT Case, judgment of 5 December 2014, para 47.
Ibid., para 53.
Liberty IPT Case, judgment of 6 February 2015, paras 24-32.
Liberty IPT Case, judgment of 5 December 2014, para 50(i).
Ibid., para 49(i).
The Government’s position, which not everyone accepts, is that the relevant sections of RIPA already
had extraterritorial effect.
118