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

The Regulation of Investigatory Powers Act 2000

What is the Regulation of Investigatory Powers Act?

The Regulation of Investigatory Powers Act or RIPA is an act which has been brought in to ensure that when surveillance of private individuals is undertaken that it is done in accordance with the various regulations which are designed to protect the members of the public.

The Act is designed specifically to ensure that the human rights of the UK general public are not infringed.

Surveillance such as police surveillance may be seen by many as a required form of police activity but it must be regulated to ensure that it is done in the correct manner and that the position of the police is not abused to the detriment of the British public.

Why was the Regulation of Investigatory Powers Act established?

Prior to RIPA coming into force the existing legislation in England and Wales which dealt with surveillance of private individuals was contained within the Interception of Communications Act 1985.

This legislation, however, was found to be in breach of Article 8 of the European Convention on Human Rights. Article 8 of the ECHR guarantees the right of privacy.

Under the 1985 Act the British authorities had an extremely wide discretion to intercept communications between the United Kingdom and an external receiver. Indeed the discretion was virtually unlimited as in principle any person who sent or received any form of telecommunication outside of the UK could have had that communication intercepted under the Interception of Communications Act.

This right was held to be too wide and in breach of Article 8. As a result the UK Government was forced to enact the Regulation of Investigatory Powers Act.

What does the Regulation of Investigatory Powers Act strive to do?

RIPA was put into place in order to regulate a wide range of investigatory powers.

It was brought in to make sure that investigatory powers which are used by various bodies and government agencies comply with human rights law. In particular it ensures that when organisations may want to use any of these covert techniques to investigate members of the public then they must first thoroughly investigate those people to ensure that the use of the techniques is in fact justified.

The techniques shouldn’t simply be used just because they can which was a problem under the previous legislation.

What types of surveillance are covered by the Regulation of Investigatory Powers Act?

RIPA covers the following types of surveillance:

  • 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

Is the privacy of members of the general public protected by the Regulation of Investigatory Powers Act?

Looking at the above kinds of surveillance that are covered by RIPA it seems that the scope of the act is wide so for many it is difficult to see how the human rights of the individuals are in fact protected. That is however, the main aim of the act.

RIPA does the following things to try and achieve that aim:

  • Strict limits are placed on the organisations and people which are allowed to use covert surveillance techniques

  • The purposes for and conditions under which the techniques can be used are set by the Act

  • The information obtained covertly can only be handled in certain ways which are specified under the Act

One of the best examples of the act is in relation to the extremely intrusive ways of covert surveillance such as the use of undercover police can only be used in extreme cases which often relates to issues of national security.

Furthermore the act also places limitations on the way which Government bodies which includes the police are allowed to carry out surveillance. For example the way the police can asses any communications data, listen into phone calls, follow individuals, take photographs and intercept emails.

In relation to the interception of phone calls and email there must be a warrant in place for this to take place.

The act has therefore squeezed the scope and limited the circumstances in which particular surveillance techniques can be used. Article 8 of the ECHR is not breached as the scope is much narrower than the previous 1985 legislation.

Which agencies are able to undertake surveillance according to the Regulation of Investigatory Powers Act?

Under the RIPA there are is a big variety of Government agencies and departments which are able to access your personal communications data.  This even extends to local authorities, councils and regulators.

However, when it comes down to the very intrusive methods of surveillance such as phone tapping it is limited to the police or the security forces which are able to undertake those methods under the RIPA.

This kind of surveillance is also subject to the obtaining of a warrant.

Intelligence Services Commissioner

Under the Regulation of Investigatory Powers Act the Intelligence Services Commissioner has the following duties:

  • To keep under review the power of the Secretary of State to issue, renew and cancel warrants

  • To keep under review the power of the Secretary of State in relation to the activities of the intelligence services

  • To keep under review the exercise and performance of the intelligence services of their powers and duties under the RIPA

  • To make an annual report to the Prime Minister regarding the above functions

Is there any other legislation which the public will need to be aware of?

Anti-terrorism, Crime and Security Act 2001

The Anti-terrorism, Crime and Security Act requires communications providers to keep records of all of their users activities for the purpose of national security. Subscription information is likely to be kept for up to one year and web caches for up to four days.

The UK Information Commissioner has since released an opinion that the using of the information for anything other than national security purposes is likely to violate the Human Rights Act 1998.