Interception of communications

Interception of communications takes two forms: the collection and monitoring of communications data (e.g. records of who contacted whom, when, from where and for how long) and interception of the content of the communications themselves. Interception was not put on a statutory footing until the Interception of Communications Act 1985. Rapid changes in telecommunications prompted a Government consultation in 1999, which resulted in the passage of the present law, the Regulation of Investigatory Powers Act 2000 (RIPA).

Under RIPA, authorisations for the acquisition and disclosure of communications data are issued by “designated persons” within the organisation seeking the data. In order to gain access to the actual content of a communication (for example the text of an email message or a telephone conversation) then a warrant issued by the Secretary of State is generally required.

Under a 2006 EC Directive incorporated into UK law since 2009, communications service providers (telephone companies and internet service providers) were required to retain communications data for a year. In April 2014, the European Court of Justice declared the 2006 Directive invalid. In response to the resulting uncertainty, the Government introduced the Data Retention and Investigatory Powers Act 2014 (DRIP), a fast-tracked piece of legislation passed with cross-party agreement by both Houses in July 2014.

A draft Communications Data Bill was announced in the Queen’s Speech in 2012 and published on 14 June 2012. The Bill was subject to pre-legislative scrutiny and some aspects of the Government’s proposals were criticised. Frequently referred to by critics as a “snooper’s charter”, it was opposed by the Liberal Democrats and not taken forward in the 2012-13 session. The draft Bill would have extended powers to cover messages sent on social media, webmail, voice calls over the internet and gaming in addition to emails and phone calls.

This Note looks at past and present law, the role of the Interception of Communications Commissioner in overseeing the present regime and recent developments in this area.