Councils call for online judicial approval of access to communications data

Councils should be able to apply for and be granted magistrates’ approval electronically for access to communications data, the Local Government Association and trading standards organisations have said.

The call was contained in written evidence submitted by the LGA, the National Anti-Fraud Network (NAFN), the Chartered Trading Standards Institute (CTSI) and the Association of Chief Trading Standards Officers (ACTSO) to the Joint Committee on the Draft Investigatory Powers Bill.

The Bill is intended to provide a framework for the use of investigatory powers by law enforcement and security and intelligence agencies, as well as other public authorities such as councils.

The LGA and the three other bodies argued that the existing practice of seeking judicial approval of access to communications data could be “slow and inefficient”.

Their written evidence said: “Some councils have reported it can take as much as five hours of officer time to gain approval because of the need to attend court to do so. We are aware that the process acts as a deterrent to councils seeking access to communications data when there is a legitimate basis for them to do so.”

The organisations claimed that the proposal for online approvals would not weaken the safeguards of requiring judicial approval, but would make it "significantly more efficient".

The written evidence claimed that councils were using their power to access communications data appropriately, pointing out that only 19 out of 6,000 requests to magistrates had been refused.

The draft Bill proposes maintaining the two specific safeguards regarding council access to communications data. Alongside the need for magistrates’ approval, councils are also required to submit their communications data requests to NAFN accredited SPOCs (Single Points of Contact). SPOCs are subject to annual inspection by the Interception of Communications Commissioner.

The NAFN is a local government shared service set up through two local authorities and now operating out of Tameside Council. “NAFN is independent of local authority investigations and imposes robust and comprehensive safeguards when receiving communications data requests,” the submission insisted. “NAFN provides a guardian and gatekeeper role to ensure that all requests are legally compliant before authorisation by a Designated Person ahead of submission for judicial approval.”

The LGA/NAFN/CTSI/ACTSO also said in their evidence, which can be viewed here, that:

• It was vital that the powers available to teams within councils, such as trading standards, kept pace with the technology through which an increasing amount of criminal activity was perpetrated.
• Given the checks that already exist in relation to councils’ access to communications data (ie authorised by a senior officer; managed through the NAFN; and approved by a magistrates’ court), it was unlikely that the proposed offence of unlawfully obtaining communications data could be incurred without deliberate intent to deceive. Such an action might already be covered by existing offences such as misconduct in public office. The new offences of knowingly or recklessly acquiring communications data needed to be very clearly defined within the draft Bill to distinguish between a genuine mistake and deliberate action. Furthermore they said it must be clear what the legal responsibilities and consequences are for inappropriate acquisitions submitted by an applicant, undertaken by a Single Point of Contact (SPOC) and authorised by a Designated Senior Officer (DSO). Although the LGA and other bodies felt the new offences were not strictly necessary, they recognised the intention to provide public assurance about proper use of the powers. They were confident that there would not be a need to invoke the offences proposed at section 8 of the Draft Bill in relation to council officers.
• The LGA and other bodies supported the introduction of new definitions of communications data (with entities and events data replacing subscriber, service use and traffic data). “Under the current regime there has been confusion and legal uncertainty about the categorisation of certain types of data, and specifically whether they constitute subscriber or traffic data, with different CSPs [Communication Service Providers] sometimes taking different approaches. The updated legislation must resolve this confusion, or risk leading to further inconsistency among CSPs and early legal cases on this point.” It was therefore critical, the LGA and the other bodies said, that there was clarity and consistency about the new definitions of communications data from the outset, and there were some areas where further explanation was essential. “Government should provide specific guidance (in either the Bill or explanatory notes) as to the scope of entity and events data available to local authorities. This should clarify the extent of local authority powers with regards to how they can access and utilise this data to avoid confusion in the future.”
• The provisions in the draft Bill on access by councils and their officers mirrored existing provisions on these issues. The LGA would not be calling for councils to have additional powers in this area. However, it was appropriate for councils to have the right to access communications data for the purpose of preventing or detecting crime.
• They recognised the public assurance requirement for maintaining the existing arrangements under which council access to communications data must be authorised internally by a director, head of service or service manager or equivalent (or someone who holds a higher position). However they had two concerns about the proposal. “The first is that the requirement for operational independence of the DSO [Designated Senior Officer] does not reflect that councils are already subject to internal member scrutiny processes, as well as to a fully independent authorisation process by magistrates. We therefore believe that the requirement for operational independence should not apply to local authorities.” A related concern was with senior officers who have a broad remit, “as it can be challenging to take on a role which involves careful scrutiny of requests and awareness of a complex and ever-changing regulatory environment”. For this reason, the organisations welcomed the proposal at section 62 of the draft Bill to allow ‘collaboration agreements’ such as the NAFN to take on the role of (among other things) DSO for other authorities. “This provides the opportunity to ensure centres of excellence such as NAFN can provide critical functions on behalf of other authorities, as well as enabling flexibility within a changing local government landscape.”
• The proposed creation of a single body to oversee the use of investigatory powers would be beneficial in terms of ensuring a consistent approach to the interpretation of key issues. “The different bodies with oversight of this area have in the past occasionally reached different interpretations of issues relevant to local authorities (for example, the DSO role): a single, consistent view will be helpful.”

The combined written evidence of the LGA and the other bodies was one of more than 120 submissions made to the joint committee, which is required to report by 11 February 2016. These submissions can be viewed here.