What rights exist in relation to the surveillance of private individuals?

The Regulation of Investigatory Powers Act 2000 (RIPA) was brought in to ensure that surveillance of private individuals is undertaken in manner which protects the public and their human rights.

RIPA replaced the Interception of Communications Act 1985 (ICA 1985) which was found to be in breach of Art 8 of the European Convention on Human Rights (the right to privacy). Under ICA 1985, British authorities had a virtually unlimited discretion to intercept communications between the UK and an external receiver.

RIPA aims to ensure that when organisations want to use covert techniques to investigate private individuals, they must show the use of such techniques are justified: the powers should not simply be used for the sake of it.

The types of surveillance covered by RIPA include:

• covert surveillance on private premises or in private vehicles;
• covert surveillance which takes place in a public place but which is directed at a specific individual;
• the use of police informants;
• the use of undercover police officers;
• the interception of letters, emails and phone calls (telephone tapping);
• being provided with any kind of telecommunications data from a provider, such as making sure you are provided with mobile phone records;
• being provided with access to any electronic data that may be protected by encrypted or a password.

To help safeguard the human rights of individuals, RIPA includes provisions which:

• place strict limits on the organisations and people which are allowed to use covert surveillance techniques;
• sets the purposes for and conditions under which the techniques can be used;
• specifies the way the information obtained covertly can be handled.

RIPA restricts the use of very intrusive methods of covert surveillance (eg, the use of undercover police) to only extreme cases which often relate to issues of national security.

The Act also places limitations on the way authorised bodies – including the police – are allowed to carry out surveillance (eg, the way police can assess communications data, listen into phone calls, follow individuals, take photographs and intercept emails). A warrant must be in place before phone calls and email can be intercepted.

Under RIPA, a wide variety of government agencies and departments are able to access your personal communications data, although intrusive methods of surveillance such as phone tapping can only be carried out by the police or the security forces with a warrant.

The Interception of Communications Commissioner is responsible for keeping under review the interception of communications and the acquisition and disclosure of communications data by intelligence agencies, police forces and other public authorities. S/he reports to the Prime Minister on a half-yearly basis with respect to the carrying out of the Interception of Communications Commissioner’s functions.

On 29 November 2016, the Investigatory Powers Act 2016 (IPA 2016) – dubbed the ‘Snoopers’ Charter – received Royal Assent. The Act outlines the use and oversight of investigatory powers by UK law enforcement, security and intelligence agencies, toughens safeguards and brings in new oversight arrangements.

IPA 2016 includes extensive powers for government agencies to require technology and communications businesses, based in the UK and abroad, to retain internet connection records (a record of the internet services to which devices have been connected) and communications data of their customers for up to a year for access by law enforcement agencies, and other public bodies, without a warrant.

Certain government agencies will have the power to access large volumes of data – which could include that of innocent private citizens – although bulk interception and bulk equipment interference warrants may only be issued where the main aim of the interception is to gather intelligence on individuals outside the UK. Communications Service Providers, when served with a notice, may also be forced to remove any applied encryption to help give effect to interception warrants.

The Act also introduces:

• 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;
• a new Investigatory Powers Commissioner, to oversee how the powers are used;
• new protections for journalistic and legally privileged material, and a requirement for judicial authorisation for acquisition of communications data that identify journalists’ sources;
• tough sanctions – including the creation of new criminal offences – for those misusing the powers.