PoliceCase Toolkit

Investigatory Powers Act 2016: A Detective's Guide

Overview of the Act

The Investigatory Powers Act 2016 (IPA) provides a framework for the use of investigatory powers by law enforcement and security agencies. It governs the interception and acquisition of communications data, equipment interference, and the use of bulk personal datasets.

For detectives, the Act is a vital tool, as it provides legal authorization to collect evidence through techniques that could otherwise violate privacy rights. By ensuring oversight and authorization (through warrants and approval by independent bodies), the Act balances the needs of law enforcement with the protection of individual privacy.

Key Sections for Detectives

Detectives primarily use the following sections of the IPA:

Part 2: Lawful Interception of Communications

Part 2 authorizes law enforcement agencies to intercept communications (such as phone calls, emails, and messages) under certain circumstances, primarily for national security or serious crime investigations.

What a detective can do:

A detective can request the interception of communications when investigating a serious crime. This includes accessing emails, text messages, and call logs. However, a warrant is required to authorize this, issued by the Secretary of State and approved by a Judicial Commissioner.

Example:

During a serious criminal investigation (e.g., organized crime or terrorism), a detective may seek to intercept a suspect’s communications to gather intelligence or evidence of criminal activity.

How to request:

  1. Prepare a detailed application justifying the need for interception. You must include the necessity and proportionality.
  2. Submit the application to a senior officer (usually Assistant Chief Constable or above). The application must include the specific communications you want to intercept, the target individual or group, the rationale, and the timeframe the interception should last.
  3. The senior officer reviews and, if approved, submits to the Secretary of State.
  4. The Secretary of State (e.g., the Home Secretary) must review and approve the request. The Secretary must be satisfied that it is necessary and proportionate.
  5. If granted, the warrant is then approved by a Judicial Commissioner, ensuring the warrant complies with legal standards.

Example Warrant:

SUBJECT: WARRANT FOR INTERCEPTION OF COMMUNICATIONS
Issued under Part 2 of the investigatory Powers Act 2016
Target Individuals:
Description of Communications:
Reason for Warrant:
Duration of Warrant:
Issued by: [Secretary of State]
Approved by: [Judicial Commissioner]

Part 3: Authorizations for Obtaining Communications Data

Part 3 allows law enforcement agencies to access communications data (e.g., who contacted whom, when, and where) without intercepting the content of the communication. This is often referred to as metadata and is crucial in tracking the movements and associations of suspects.

What a detective can do:

A detective can obtain communications data such as phone records, internet connection records, and email metadata. This does not include the content of the communications but provides vital clues such as contact networks, location history, and timelines.

Example:

If a detective is investigating a series of robberies and suspects a group of individuals is communicating about the crimes, they can request access to their call records to establish connections between the suspects.

How to request:

  1. Complete an application form detailing the necessity and proportionality of the request, inluding why the data is helpful to the investigation. Make sure to outline exactly what data you need (call records, IP addresses) and the period in which the data is required.
  2. Submit the application to the force's Single Point of Contact (SPoC)
  3. The SPoC reviews and forwards to an authorizing officer
  4. If approved, the request is sent to the Office for Communications Data Authorizations (OCDA) for independent authorization

Example Warrant:

WARRANT FOR COMMUNICATIONS DATA ACCESS
Issued under Part 3 of the Investigatory Powers Act 2016
[Target individual(s) name(s)]: John Doe
[Data requested]: Call logs, including times, dates, and phone numbers contacted by John Doe, between [start date] and [end date].
[Reason for the warrant]: Investigation into drug trafficking activities, pursuant to sections related to serious crime.
[Authorized personnel]: Chief Superintendent [Name], approved by the Department of Investigation.
Issued by: [Senior Officer]

Part 4: Retention of Communications Data

Part 4 governs the retention of communications data by telecommunications providers. It allows the government to require providers to retain data for up to 12 months for purposes such as preventing and detecting crime.

What a detective can do:

A detective can request access to retained communications data (e.g., phone logs, internet history) from telecommunications providers when it is relevant to an investigation. This data can be critical for tracking suspects' movements, identifying contacts, and corroborating alibis.

Example:

In a cybercrime investigation, a detective may request internet browsing history or IP logs to trace the activity of a suspect and determine their involvement in the crime.

How to request:

  1. Complete an application form detailing the necessity and proportionality of the request, inluding what data they want (IP logs, Call logs, Location data). Explain why less intrusive methods might not deliver the same outcome.
  2. Submit the application to the force's Single Point of Contact (SPoC).
  3. The SPoC reviews and forwards to an authorizing officer.
  4. If authorizing officer approves the warrant.

Example Warrant:

WARRANT FOR ACCESS TO RETAINED COMMUNICATIONS DATA
Issued under Part 4 of the Investigatory Powers Act 2016
[Target individual(s) name(s)]: John Doe
[Data requested]: Phone records and location data retained between [start date] and [end date] by [Telecommunications Provider].
[Reason for the warrant]: Investigation into organized crime and gang activity.
[Authorized personnel]: Superintendent [Name], CID.
Issued by: [Telecommunications Provider], upon receipt of lawful request.

Part 5: Equipment Interference

Part 5 allows law enforcement to interfere with electronic equipment (such as computers and smartphones) to obtain data or access communications. This includes hacking into devices to gather evidence.

What a detective can do:

Detectives can request permission to access data from suspects' devices remotely, including emails, files, and communication apps. This can be used in high-level investigations such as cybercrime or terrorism.

Example:

In an investigation into terrorism, detectives may need to access encrypted files or messages on a suspect's phone that contain vital evidence.

How to request:

  1. Prepare a detailed application explaining the necessity and proportionality of the interference. Make sure to specify the devices(s) to be targeted, the data trying to be retrieved (emails, files, etc.) and why you can't use other methods.
  2. Submit the application to a senior officer (usually Assistant Chief Constable or above)
  3. If approved, the application is sent to the Secretary of State
  4. The warrant must then be approved by a Judicial Commissioner

Example Warrant:

WARRANT FOR EQUIPMENT INTERFERENCE
Issued under Part 5 of the Investigatory Powers Act 2016
[Target individual(s) name(s)]: John Doe
[Device(s)]: Smartphone (Model: iPhone 12, Serial No.: XXXX), Laptop (Model: Dell XPS, Serial No.: XXXX)
[Data to be retrieved]: Encrypted emails and documents related to cyber fraud activity.
[Method of interference]: Remote access via authorized government hacking tool.
[Reason for the warrant]: Investigation into financial cybercrime and identity theft.
[Duration of interference]: From [start date] to [end date], or until termination by authorized personnel.
Issued by: [Secretary of State]
Approved by: [Judicial Commissioner]

Part 7: Bulk Personal Dataset Warrants

Part 7 of the Investigatory Powers Act 2016 addresses Bulk Personal Dataset (BPD) Warrants, which allow intelligence agencies to collect large datasets containing personal information, even if the individuals in the dataset are not of direct interest. This data can be useful for law enforcement when investigating serious crimes or threats to national security.

What a detective can do:

Detectives can access and analyse bulk personal datasets to identify individuals of interest or to cross-reference data. They can use data from these warrants to support large, complex investigations into organised crime groups, terrorism, or cybercrime.

Example:

A detective investigating an organized crime group may use bulk personal datasets to identify associates, track financial transactions, or uncover hidden relationships within the group. For example, a large dataset of banking information might reveal suspicious transactions linked to criminal activity.

How to request:

  1. Consult with the force's legal department and senior officers to demonstrate that accessing the bulk personal dataset is necessary and proportionate.
  2. Prepare a detailed justification for accessing or acquiring the dataset.
  3. Submit the application through the appropriate channels to the Secretary of State.
  4. If approved, the warrant must be further approved by a Judicial Commissioner.

Example Warrant:

WARRANT FOR BULK PERSONAL DATASET ACCESS
Issued under Part 7 of the Investigatory Powers Act 2016
[Target individual(s)]: Organized Crime Group A (associated individuals not explicitly known)
[Data requested]: Full access to financial transaction data from [Financial Institution] for the period [start date] to [end date], including account details, transfers, and account holders’ information.
[Reason for the warrant]: To investigate money laundering and trafficking activities related to organized crime, requiring analysis of financial transactions across various accounts.
[Duration of warrant]: Valid for 6 months from [start date] or until all necessary data has been retrieved and analyzed.
Issued by: [Secretary of State]
Approved by: [Judicial Commissioner]

Important Considerations

Telecommunications Providers

Telecommunications providers must immediately comply with the warrant on recieving it.

When the Warrant is Recieved:

The telecom company must review the warrant and comply with its requirements. This typically involves gathering the requested data (e.g., call records, user information) and securely transmitting it to the requesting authority. The company cannot delay this process without a valid reason. The company is also legally required to keep the warrant and its contents confidential. They cannot inform the individual whose data is being requested or disclose the warrant to any third parties.

What to Do If They Suspect Fraud (Doubt the Warrant’s Legitimacy):

The telecom company can do one of three things. These cannot however delay the compliance with the warrant without legal basis:
Internal Review: The company’s legal team can verify if the warrant is genuine by checking the signatures (from the Secretary of State and Judicial Commissioner) and other details.
Request for Proof: If there are doubts about authenticity, the telecom company can request further confirmation from the issuing authority. They can ask for clarification from the government or law enforcement to ensure the warrant is valid.
Consultation: If they remain unconvinced, they may seek advice from the Investigatory Powers Commissioner, who oversees the use of investigatory powers.

Fighting the Warrant (If They Believe It Is Overly Broad or Unlawful):

The telecom company can, in execptional circumstances (e.g., when a warrant is overly broad or appears to violate legal standards), fight the warrant. There are two ways this is done:
Challenge the Warrant: If the company believes the warrant is too broad, disproportionate, or otherwise unlawful, they can challenge it. They would typically initiate a judicial review, arguing that the warrant is not justified or that the scope of data requested is excessive.
Legal Counsel: The company should seek legal counsel and may present their case to the Investigatory Powers Tribunal or a court, which will review whether the warrant was issued within the bounds of the law.

Penalties for Non-Compliance:

Fines and Legal Sanctions: If the telecom company refuses to comply with a valid warrant without legal grounds, they can face substantial fines and other legal penalties.
Confidentiality Breach: Disclosing information about the warrant to unauthorized parties can also result in legal action and sanctions.