Human Rights- Interception of communication Flashcards
Interception of communication
= interception occurs when the content of a communication is collected during transmission (e.g. emails, phone calls)
Article 8 can be removed under Article 8(2): set down in law, necessary (good enough reason-national security) and proportionate
Klass v Germany = public authority can interfere with an individual’s right to privacy to protect public safety / freedom of others
Investigatory Powers Act 2016 - legalises tools for interception of communication (‘snooping and hacking’)
Barbulescu v Romania = current approach for interception of communication at workplace. (sacked for using work account for personal use). Ruled employee had reduced right to privacy but not removed completely - must be balanced with the interests of the company
Position pre-1985 to current
Pre-1985 it was administered through policy not law (leave it open to abuse- no deterrent to stop illegal infringement on people’s rights)
Malone v Commissioner of Metropolitan Police = wire-tapping allowed as no law against it - residual freedoms - Malone v UK = UK had breached Article 8 as infringing on that right had not been prescribed by law
Parliament then passed the Interception of Communication Act (1985)
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Replaced by Part I of Regulation of Investigatory Powers Act (2000)
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Now contained in Investigatory Powers Act (2016) [after revelations of Edward Snowdon in 2013]
Investigatory Powers Act (IPA) 2016
1) Interception of an individual’s communications (Part 2 IPA)
- Covers actual content of communication (i.e. what emails say)
- HMRC, heads of intelligence agencies + some police forces can intercept communications if they have a warrant
- Warrant = granted by Home Secretary (s.19) if necessary + proportionate. S.20 = reasons = fight crime, economy, national security
- In urgent cases needs to be approved by Judicial Commissioner from the Investigatory Powers Commissioner’s Office (s.19) –> ‘double lock’ [position only available to HC+ judges- unelected judges deciding (eval?)]
2) Communications data (Part 3 and Part 4 IPA)
- Information about someone’s communications rather than the contents of it
- Range of agencies can get access (GCHQ - Food Standards Agency) but have to be authorised by a senior figure in that organisation –> can only be authorised if necessary for 1 of 10 reasons (1st-national security)
3) Equipment interference (Part 5 IPA)
- Hacking into devices to mess with / get information out of then
- Home Secretary can grant warrants for same reasons
- Judicial Commissioners have to approve unless it’s urgent (s.108)
4) Bulk personal datasets
- Databases containing information on lots of people
- Generally need a warrant (granted by Home Sec signed by Judicial Commissioner) - extra protection for health records
5) Bulk interception, acquisition and hacking powers
- ‘Bulk warrants’ = access to communications en masse –> look indiscriminately at data
- Either intercept info directly during transmission / force companies to hand over data
- Can also authorise widespread hacking of devices
- Only granted to intelligence agencies with approval of both a minister + Judicial Commissioner
Issues
1) Admissibility of evidence
- Not possible to use evidence in court
- Chilcott Review (2008) = in favour of its use in court in some cases (but not against wishes of intelligence agencies)
- Govt review ‘Intercept as Evidence’ (2014) - making no change
- Some exceptions (wire-tapped conversations from Category A prisoners can be used – e.g. conversations between killer Ian Huntley to Maxine Carr and his mother
(be aware of arguments for and against this)
2) Double lock just a rubber stamp
- The decision of the Judicial Commissioner can be challenged by the more senior Investigatory Powers Commissioner
- Argues not independent oversight - only ‘review’ and ‘approve’
- Would also save time - Theresa May when she was Home Sec authorised 2,345 warrants (6 a day) in 2014
3) Sweeping retention powers
- Forcing companies to hand over data
- Can be obtained by reasons unrelated to the suspicion of a crime (e.g. to collect tax and fines)
- Liberty challenged this in The Queen on the application of Liberty v Secretary of State for the Home Department –> govt. had to change law to require a review by an independent body (which is now Office for Communications Data)
4) Bulk interception, acquisition and hacking powers
- Intelligence services need a warrant but campaigners argue looking at data indiscriminately is morally wrong
– Big Brother Watch and Others = court didn’t object to bulk interceptions in principle, but UK’s approach had been lacking
Positives
- Warrants for most intrusive powers require approval from a judge
- Created role of Investigatory Powers Commissioner to oversee intelligence agencies
- Communications data can sometimes be only way to identify offenders, especially where they were committed online (e.g. fraud + child sexual exploitation)
- Bulk personal datasets allow them to more effectively distinguish the guilty from the innocent
