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Source: Bloomberg Law
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04.19.17
On Nov. 29, 2016, the Investigatory Powers Bill received Royal Assent to become the Investigatory Powers Act 2016. The Bill, which the Government called a ‘‘landmark bill,’’ sets out and governs the powers available to the police, security and intelligence agencies to gather and access electronic communications. The Government says that the 2016 Act will ‘‘ensure that law enforcement and the security and intelligence agencies have the powers they need in a digital age to disrupt terrorist attacks, subject to strict safeguards and world-leading oversight.’’ The Government also says that the new legislation brings together and updates existing powers while radically overhauling how they are authorised and overseen.
In the Government’s view, the new Act protects both the privacy and security of the public by introducing a ‘‘double-lock’’ for the most intrusive powers, so that warrants issued by a secretary of state will also require the approval of a senior judge, and by the introduction of an Investigatory Powers Commissioner (IPC) to oversee how the powers are used. There are also new protections for journalistic and legally privileged material and a requirement for judicial authorisation for the acquisition of communications data that identify journalists’ sources. The Act also now contains sanctions, including the creation of new criminal offences, for those misusing the powers. However, to complicate matters, on Dec. 21, 2016, the Court of Justice of the European Union (CJEU) ruled, in Joined Cases C-203/15 Tele2 Sverige AB v Postoch telestyrelsen and C 698/15 Secretary of State for the Home Department v Tom Watson, that Members States cannot impose a general obligation to retain data on providers of electronic communications services.
Read more: The New U.K. Investigatory Powers Act - Under The Spotlight Following Key EU Ruling