Interception Commissioner suggests secret police grab of Sun phone records may have been unlawful

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The Government’s surveillance watchdog appeared to suggest last night that police use of the Regulation of Investigatory Powers Act to spy on journalists may have been unlawful.

This is because such powers should only be used to detect criminality, rather than for internal disciplinary proceedings.

But the Interception of Communications Commissioner Office (IOCCO) headed by Sir Anthony May (pictured above) has said it has does not know many times public authorities have used RIPA to spy on journalists and their sources. And it said that because it is not a public authority, journalists cannot use the Freedom of Information Act to find out.

It also said in a statement last night that it is conducting an inquiry into the over-use of RIPA by public authorities. But Press Gazette has since learned that this inquiry was first announced last February, and the results will not be revealed until the IOCCO annual report is published next year.

Last year, public authorities made more than 500,000 requests for communications data under RIPA.

Press Gazette revealed on Tuesday that the Met used secretly-obtained telecoms data relating to Sun political editor Tom Newton Dunn and The Sun newsdesk to find and sack three officers who leaked information about the Plebgate affair.

The IOCCO last night gave the first indication that this may have been an illegal use of the Regulation of Investigatory Powers Act 2000.

It said in a statement it said that RIPA enables a number of public authorities to secretly seize communications data from telecoms companies in order to investigate “criminal activity”.

The Crown Prosecution Service ruled that The Sun sources the Met tracked down via RIPA had acted in the “public interest” so could not be charged.

The IOCCO said that  “…police cannot use their powers within the act to acquire communications data to obtain evidence to then merely make an officer or member of their staff subject to an internal discipline hearing.

“So, should it be determined there are insufficient grounds to continue the criminal investigation or insufficient evidence to initiate a prosecution within a criminal court, it will, with immediate effect, no longer be appropriate for the police force to obtain communications data under the act.”

The IOCCO also said:  "We are in the process of carrying out an inquiry into whether there might be institutional overuse by police forces and law enforcement agencies of authorisations to acquire communications data. We will report on this inquiry when the investigation is complete.”

Press Gazette asked the IOCCO earlier this week how many times the police and other agencies had used RIPA to secretly obtain journalists' call records.

But it said last night: "IOCCO is not a 'public authority' for the purpose of the Freedom of Information Act. We do not hold any additional statistical information to that which is published. We also do not hold information concerning the detail of individual applications submitted by public authorities."

The IOCCO last night outlined further details regarding the safeguards around the use of RIPA. But they make clear that approval of RIPA requests is a secret internal process within the public authority concerned and that there is no neccessity to go to a judge, even in cases involving journalists.

It said: “Communications data generated and processed by CSPs [Communications Service Providers] are business records. They do not contain any details of what was said or written by the sender or the recipient of the communication.

“As such, the communications data retained by CSPs do not contain any material that may be said to be of professional or legal privilege – the fact that a communication took place does not provide what was discussed or considered or advised.

“However, it may be possible to infer an issue of sensitivity is under consideration because a person has regular contact with, for example a lawyer, doctor, journalist, Member of Parliament, or minister of religion.

“Thus the degree of interference with the person’s privacy and their correspondence may be said to be higher when a person is in regular contact by telephone with, for example, a medical practitioner known to specialise with a particular condition or illness or with a journalist noted for specialising in a particular topic.

“Such situations do not preclude the acquisition of communications data within a criminal investigation but the senior officer considering authorising an application in such circumstances must have the facts set out in the application they are considering so they may properly assess necessity, proportionality and collateral intrusion matters.

“The senior officer can only approve the acquisition of data where they believe it is necessary and proportionate in the specific circumstances and they must record their considerations at the time."

The Met Police has declined to comment on whether it has used RIPA before to spy on journalists.

Press Gazette asked ACPO what guidance it gives on the use of RIPA against journalists. 

Assistant chief constable Jon Boutcher said on behalf of ACPO: "Where it is necessary for the purpose of preventing or detecting crime or preventing disorder, the police will use the power given to them by RIPA to obtain and disclose communications data.

"Although we are unable to comment on individual cases, great care is taken to ensure RIPA is only used where there is the justification for a specific investigation. Such actions are subject to scrutiny by the Office of Surveillance Commissioners and through subsequent court proceedings that ensure that the police have acted properly.”

Read the IOCCO statement in full.

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