Report of the Interception of Communications Commissioner - July 2016
Section 4
The Data Retention and Investigatory Powers Act (DRIPA)
4.1
DRIPA11 received Royal Assent on 17 July 2014. IOCCO published its full response12
to DRIPA shortly thereafter. To meet the requirements expressed by Parliament during
the passing of the bill, IOCCO was asked to report on whether DRIPA, in practice, does
exactly what the Government said it would13 and to reassure Parliament that DRIPA is
implemented in the way Parliament intended.14
4.2
We provided updates on the implementation of DRIPA in our March 201515 and
July 201516 reports and do not intend to repeat those extracts, apart from our broad
conclusions which are unchanged. The amendments to the various definitions and explicit
assertion of extra-territoriality in DRIPA do not appear in practice to have resulted in an
extension of powers and do not appear to have changed or amended the operational
practice of those public authorities using their powers under Part 1, or the conduct
undertaken by overseas CSPs.
4.3
Whilst overseas CSPs receive notices under section 22(4) of RIPA requiring the
disclosure of communications data, the CSPs continue to maintain that the notices cannot
be enforced or compelled through civil sanction within the UK as they are outside of UK
jurisdiction. It is common for the CSPs to require information in addition to the notice to
determine whether they are able to disclose communications data taking into account
the laws within the jurisdiction in which they generate and retain the data. In the CSP’s
view they are disclosing the data “voluntarily” and are not compelled to do so.
4.4
With regard to interception warrants, although the number of overseas CSPs
co-operating has improved, they continue to provide voluntary assistance in limited
circumstances. The Government has not, so far, taken steps to enforce the duty under
section 11 (as amended by DRIPA) to comply with an interception warrant.
4.5
On 15 July 2016 the United States (US) Government presented a legislative
proposal for the consideration of Congress that would help resolve potential conflicting
legal obligations that US electronic CSPs may face when required to disclose electronic
data by foreign Governments investigating serious crime, including terrorism.17
11 https://www.gov.uk/government/collections/data-retention-and-investigatory-powers-act-2014
12 http://www.iocco-uk.info/docs/IOCCO%20response%20to%20new%20reporting%20requirements.pdf
13 Home Secretary comments in Hansard Column 708 “......reassure people that the Bill does exactly what
the Government are saying: it merely replaces the powers already in existence ........ The Commissioner
currently reports annually on these matters, and the Opposition proposal, as I understand it, is that he
would report on a six-monthly basis. He would, therefore, not just be looking at the situation, but reporting
on what was happening. Were he [the Interception Commissioner] to find that there was an extension of
powers that would be made clear to the people......”
14 Yvette Cooper MP – Shadow Home Secretary - Hansard Column 724 - “The six monthly review will
reassure the House that the Bill is being implemented in the way that Parliament intended”
15 See section 5 http://iocco-uk.info/docs/IOCCO%20Report%20March%202015%20(Web).pdf
16 See section 2 http://www.iocco-uk.info/docs/2015%20Half-yearly%20report%20(web%20version).pdf
17 https://www.documentcloud.org/documents/2994379-2016-7-15-US-UK-Biden-With-Enclosures.
html#document/p4
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