The Data Retention and Acquisition Regulations 2018

JurisdictionUK Non-devolved
CitationSI 2018/1123

2018 No. 1123

Electronic Communications

The Data Retention and Acquisition Regulations 2018

Made 31th October 2018

Coming into force in accordance with regulation 1

The Secretary of State, being a Minister designated1for the purposes of section 2(2) of the European Communities Act 19722in respect of matters relating to electronic communications, in exercise of the powers conferred by that section and by paragraph 4(3) of Schedule 7 to the Investigatory Powers Act 20163makes the following Regulations.

In accordance with paragraph 4(1) of Schedule 7 to the Investigatory Powers Act 2016, the Secretary of State has prepared and published a draft of the code of practice brought into force by these Regulations, considered representations made about the draft and modified it.

In accordance with paragraph 4(2) of that Schedule, the Secretary of State has consulted the Investigatory Powers Commissioner and the Information Commissioner.

In accordance with paragraph 4(4) of that Schedule and paragraph 2(2) of Schedule 2 to the European Communities Act 1972, a draft of these Regulations was laid before Parliament and approved by a resolution of each House of Parliament.

In accordance with paragraph 4(5) of Schedule 7 to the Investigatory Powers Act 2016, when a draft of these Regulations was laid before Parliament, the code of practice brought into force by these Regulations was also laid.

S-1 Citation and commencement

Citation and commencement

1.—(1) These Regulations may be cited as the Data Retention and Acquisition Regulations 2018.

(2) This regulation and regulation 2 come into force on the day after the day on which these Regulations are made.

(3) The following provisions of these Regulations come into force on 1st November 2018—

(a)

(a) regulation 3;

(b)

(b) regulation 4 for the purposes of regulations 8 to 10;

(c)

(c) regulations 8 and 9;

(d)

(d) regulation 10 for the purposes of paragraphs 22, 23 and 27(b) and (c) of Schedule 1;

(e)

(e) regulation 11 for the purposes of paragraph 2 of Schedule 2;

(f)

(f) paragraphs 22, 23 and 27(b) and (c) of Schedule 1;

(g)

(g) paragraph 2 of Schedule 2.

(4) Subject to paragraph (5), the following provisions of these Regulations come into force on the day that section 61(1) of the Investigatory Powers Act 2016 comes into force—

(a)

(a) regulation 4 for all remaining purposes;

(b)

(b) regulations 5 to 7;

(c)

(c) regulations 10 and 11 for all remaining purposes;

(d)

(d) Schedule 1 so far as not already in force;

(e)

(e) paragraph 1 of Schedule 2.

(5) Where section 61(1) of the Investigatory Powers Act 2016 comes into force on a day only for a particular purpose or purposes specified in regulations under section 272(1) of that Act, the provisions specified in paragraph (4) come into force on that day only for that purpose or (as the case may be) those purposes.

S-2 Code of Practice

Code of Practice

2. The code of practice entitled “Communications Data” laid before Parliament on 28th June 2018 has effect.

S-3 Amendments of the Regulation of Investigatory Powers Act 2000

Amendments of the Regulation of Investigatory Powers Act 2000

3.—(1) Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 20004is amended as follows.

(2) Section 22 (obtaining and disclosing communications data)5is amended in accordance with paragraphs (3) to (5).

(3) For subsection (2)(b) substitute—

“(b)

“(b) for the applicable crime purpose;”.

(4) Omit subsections (2)(e) and (f).

(5) After subsection (2) insert—

S-2A

“2A In this section, “the applicable crime purpose” means—

(a) where the communications data is wholly or partly data falling within section 21(4)(a) or (b), the purpose of preventing or detecting serious crime;

(b) in any other case, the purpose of preventing or detecting crime or of preventing disorder.”.

(6) In section 25 (interpretation of Chapter 2 of Part 1)6, in subsection (1), after the definition of “relevant public authority” insert—

““serious crime” includes crime which would not satisfy the test in section 81(3)(a) or (b) but where the offence, or one of the offences, which is or would be constituted by the conduct concerned is—

(a) an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of 12 months or more (disregarding any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions), or

(b) an offence—

(i) by a person who is not an individual, or

(ii) which involves, as an integral part of it, the sending of a communication or a breach of a person’s privacy.”.

(7) In that section, after subsection (1) insert—

S-1A

“1A Until the day on which the amendment made to section 81(3)(a) of this Act by paragraph 211 of Schedule 7 to the Criminal Justice and Court Services Act 2000 comes into force, the definition of “serious crime” in subsection (1) is to be read as if for the words “the age of 18 (or, in relation to Scotland or Northern Ireland, 21)” there were substituted “the age of 21”.”.

S-4 Amendments of the Investigatory Powers Act 2016

Amendments of the Investigatory Powers Act 2016

4. The Investigatory Powers Act 2016 is amended in accordance with regulations 5 to 10.

S-5 Grant of authorisations by the Investigatory Powers Commissioner

Grant of authorisations by the Investigatory Powers Commissioner

5. After the heading of Part 3 insert—

“Targeted authorisations for obtaining data: the Investigatory Powers Commissioner(60A) Power of Investigatory Powers Commissioner to grant authorisations(1) Subsection (2) applies if the Investigatory Powers Commissioner, on an application made by a relevant public authority, considers—(a) that it is necessary for the relevant public authority to obtain communications data for a purpose falling within subsection (7),(b) that it is necessary for the relevant public authority to obtain the data—(i) for the purposes of a specific investigation or a specific operation, or(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of communications data, and(c) that the conduct authorised by the authorisation is proportionate to what is sought to be achieved.(2) The Investigatory Powers Commissioner may authorise the relevant public authority to engage in any conduct which—(a) is for the purpose of obtaining the data from any person, and(b) relates to—(i) a telecommunication system, or(ii) data derived from a telecommunication system.(3) Subsections (1) and (2) are subject to—(a) section 62 (restrictions in relation to internet connection records),(b) sections 70, 73 and 75 and Schedule 4 (restrictions relating to certain relevant public authorities),(c) section 76 (requirement to consult a single point of contact), and(d) section 77 (Commissioner approval for authorisations to identify or confirm journalistic sources).(4) Authorised conduct may, in particular, consist of the relevant public authority—(a) obtaining the communications data itself from any person or telecommunication system,(b) asking any person whom the relevant public authority believes is, or may be, in possession of the communications data or capable of obtaining it—(i) to obtain the data (if not already in possession of it), and(ii) to disclose the data (whether already in the person’s possession or subsequently obtained by that person) to the relevant public authority, or(c) requiring by notice a telecommunications operator whom the relevant public authority believes is, or may be, in possession of the communications data or capable of obtaining it—(i) to obtain the data (if not already in possession of it), and(ii) to disclose the data (whether already in the operator’s possession or subsequently obtained by the operator) to the relevant public authority.(5) An authorisation—(a) may relate to data whether or not in existence at the time of the authorisation,(b) may authorise the obtaining or disclosure of data by a person other than the relevant public authority, or any other conduct by such a person, which enables or facilitates the obtaining of the communications data concerned, and(c) may, in particular, require a telecommunications operator who controls or provides a telecommunications system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system.(6) An authorisation may not authorise any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.(7) It is necessary to obtain communications data for a purpose falling within this subsection if it is necessary to obtain the data—(a) in the interests of national security,(b) for the applicable crime purpose (see subsection (8)),(c) in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security,(d) in the interests of public safety,(e) for the purpose of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health,(f) to assist investigations into alleged miscarriages of justice, or(g) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—(i) to assist in identifying P, or(ii) to obtain information about P’s next of kin or other persons connected with P or about the reasons for P’s death or condition.(8) In subsection (7)(b), “the applicable crime purpose” means—(a) where the communications data is wholly or partly events data, the purpose of preventing or detecting serious crime;(b) in any other case, the purpose of preventing or detecting crime or of preventing disorder.(9) The fact that the communications data which...

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