What is the Act about? What are the ‘Investigatory Powers’ it regulates?
The Regulation of Investigatory Powers Act 2000, or ‘RIPA’ as it is commonly known, governs the use of covert surveillance by public bodies. This includes bugs, video surveillance and interceptions of private communications (eg phone calls and emails), and even undercover agents (‘covert human intelligence sources’).
It’s important to note that RIPA does not just cover surveillance by police but also by other law enforcement bodies (eg the Serious Fraud Office or the Serious Organised Crime Agency), the security and intelligence services (MI5, MI6 and GCHQ), as well as a large number of other public bodies, including local government.
So this is why local authorities have been able to use surveillance powers in relation to school boundaries, disabled parking and alleged anti-social behaviour?
Yes, the Act provides a detailed framework for surveillance activities, although not everything understood as surveillance would be covered by RIPA. As a general rule, RIPA governs active surveillance – actions interfering with individual privacy that would normally be illegal if carried out by a private individual, eg installing a listening device in someone’s house, but can be lawful because carried out for a legitimate governmental purpose, eg detecting crime. It does not extend to other privacy technologies such as databases or CCTV (except, for example, where the CCTV camera was installed in such a way as to monitor a private home).
How does the Act work?
The Act distinguishes between interception of private communications and communications data (Part 1), directed surveillance and instrusive surveillance (Part 2).
What’s the difference between intercept and communications data?
Interception of private communication (phone calls, emails, text messages, faxes, etc) or ‘intercepts’ are the most sensitive kind of surveillance. With few exceptions, interceptions are authorised under warrant by the Home Secretary and anything obtained pursuant to a warrant – and the warrant itself – is completely inadmissible in any legal proceedings. This is because of the fears of MI5 and MI6 that using intercept evidence would reveal too much about their interception capabilities.
‘Communications data’ is different from intercept in that it is information about a communication rather than its contents. For example, the record of your phone provider that you called a particular telephone number on a particular time and date is communications data. What was actually said as part of telephone call would normally be covered by an intercept.
Okay, what’s the difference between directed and intrusive surveillance?
‘Directed’ surveillance is surveillance that is conducted as part of a specific investigation and carried out ‘in such a manner as is likely to result in the obtaining of private information about a person’.
‘Intrusive’ surveillance is directed surveillance that involves either residential premises, a private vehicle, or any kind of surveillance device. So, for example, following a suspect down a street as part of an operation would be directed surveillance. Planting a bug in someone’s house, by contrast, would be intrusive surveillance.
What kind of oversight is there for this?
Part 4 of the Act does provides for three commissioners: the Interception of Communications Commissioner, the Intelligence Services Commissioner and the Chief Surveillance Commissioners. There is also an Investigatory Powers Tribunal established to hear complaints related to surveillance.
Unfortunately, the Act is extremely complex and the kind of authorisation required and level of oversight available depends very much on the kind of surveillance: intercept, communications data, directed surveillance and instrusive surveillance. Generally speaking, the least instrusive kinds of surveillance are largely self-authorised by a senior member of the public body concerned, with after-the-fact scrutiny by the relevant commissioner. More instrusive surveillance requires the involvement of the Surveillance Commissioner but there is no prior judicial authorisation required for intercepts – the most intrusive kind of surveillance. Accordingly, the UK is judged to have one of the weakest systems of surveillance regulation of any EU or common law country.
Prior judicial authorisation? Why is that important?
In virtually every other common law country, eg United States, Canada, South Africa, etc – interceptions and bugs by law enforcement require a judicial warrant. This means that the police have to apply ex parte to a judge for permission before they can carry out surveillance. By contrast, an interception warrant under Part 1 of RIPA is granted by the Home Secretary.
The European Court of Human Rights has held that the right to respect for private life requires the law governing lawful covert surveillance to ‘provide some protection to the individual against arbitrary interference with Article 8 rights’.((Halford v United Kingdom (1997) 24 EHRR 523 at para 49. ))However, the fact that surveillance powers are now being employed in disputes about school boundaries suggests otherwise.
Coherent reform of surveillance powers in the UK would begin by requiring all kinds of surveillance to be authorised by an independent judicial authority, rather than elected (or in some cases even unelected) public officials.
Where can I get more information?