Corporate Policy and Procedures Document on Accessing Communications Data

Applications for Communications Data will only be approved where it is necessary for an Applicable Crime Purpose.

The Applicable Crime Purpose varies depending upon whether the Communications Data sought is classified as Entity Data or Events Data.

Entity Data is the identity of an individual communications device or the person to whom services are provided, such as the registered user of a telephone number or email address.

Events Data is the date, time and type of communications and the duration and frequency of communications.

Where the communications data being sought is Entity Data, the Applicable Crime Purpose must be for the prevention and detection of crime. This permits the Council to obtain Entity Data irrespective of the seriousness of the crime.

In the case of Events Data, the threshold is higher to reflect the fact it contains more intrusive Communications Data, as such the purpose of obtaining the data must be for the prevention or detection of serious crime.

A serious crime is defined in Section 86(2A) of the IPA as an offence for which an adult is capable of being sentenced to 12 months or more in prison or any offence:

• involving violence;
• resulting in a substantial financial gain;
• involving conduct by a large group of persons in pursuit of a common goal;
• any offence committed by a body corporate; or
• any offence which involves, as an integral part of it, the sending of a communication or a breach of a person's privacy.

The Home Office publishes a list of 'notifiable' offences which may be useful in checking whether the maximum sentence for an offence is 12 months or more. A link to this publication can be found in Appendix 2.

Applications should only be made where the applicant is satisfied that there is no other reasonable means of carrying out the investigation, or obtaining the desired information, without undertaking the activity for which authorisation is sought.

Demonstrating Necessity

In order to demonstrate that an application is necessary a link between the following three aspects must be established and set out within the application;

• the event under investigation (the crime or disorder);
• the person whose data is sought (e.g. the suspect, and how they are linked to the event);
• the Communications Data sought, and how this relates to the person and the event.

Demonstrating Proportionality

Applicants should consider the following questions;

• Is the proposed covert surveillance proportional to the mischief under investigation?
• Is it proportionate to the degree of anticipated intrusion on the target and others?
• Is it the only option, other overt means having been considered and discounted?

Such considerations involve balancing the intrusiveness of the activity on the target and others, against the need for the activity in operational terms. The activity will not be proportionate if it is excessive in the particular circumstances or if the information sought could reasonably be obtained by less intrusive means.

Any activity must be carefully managed to meet the objective in question and must not be arbitrary or unfair. Any unnecessary intrusion, including Collateral Intrusion, must be minimised as much as practically possible.

The following should therefore be set out within the application:

• The reasons as to why that activity is sufficient and adequate for obtaining the information sought;
• Whether there are any other reasonable means of obtaining the information sought;
• Whether the surveillance is an essential part of the investigation;
• The type and quality of the information the activity will produce and its likely value to the investigation;
• The amount of intrusion, other than Collateral Intrusion, the activity will cause and whether there are ways to minimise that intrusion; and
• The length of time for which the authorisation is sought and whether the activity can be undertaken within a shorter time frame.

Confidential Information

Consideration should also be given as to the likelihood of Confidential Information being acquired. Confidential Information consists of matters subject to legal privilege, confidential private information or confidential journalistic material.

Where the purpose of a Communications Data application is to identify a journalistic source, the application will require authorisation from both OCDA and a Judicial Commissioner from the IPCO.  Before making such application, the applicant should inform the SRO and obtain further advice from Legal Services.

Where Confidential Information is likely to be acquired, authorisation will only be given in exceptional and compelling circumstances with full regard to the proportionality issues this raises.

Risk of Collateral Intrusion

The applicant should describe the activity sufficiently widely to include not only named individuals, but also any others who are the not primary subject of the investigation but whose private life may be at risk of Collateral Intrusion.

Where the risk of Collateral Intrusion is sufficiently significant, the applicant should consider whether a separate authorisation is required in respect of these other persons. And in circumstances where the investigation or operation unexpectedly interferes with the privacy of individuals not covered by the authorisation, an application for authorisation should be made.

Where an application may give rise to significant Collateral Intrusion, use of the 'request filter' should be considered. The request filter is operated on behalf of the Home Office and is overseen by the Investigatory Powers Commissioner. The filter operates as a safeguard, automatically filtering Communications Data to ensure that only the Communications Data that matches specified criteria is provided. Any irrelevant data will be deleted and will not be provided to the SPoC or the applicant.

The SPoC is responsible for monitoring the request filter progress, but the Council will be the data owner and processor of any Communications Data disclosed.

Novel or Contentious Applications

The Council is able to seek guidance from a Judicial Commissioner where an application to obtain Communications Data is either novel or contentious.

Applications involving new technical methods of acquisition or new types of Communications Data may be considered novel, and applications involving an unusual amount of Collateral Intrusion or where there is an unusual sensitivity attached to the application may be considered contentious.

The requirement to seek guidance is optional, but the SRO should be made aware and be supportive of any course of action decided by the applicant.