Assessment of Govt. report stage amendments
Caspar Bowden
cb at fipr.org
Tue, 18 Jul 2000 13:44:09 +0100
V. glad any comments
--
Caspar Bowden Tel: +44(0)20 7354 2333
Director, Foundation for Information Policy Research
RIP Information Centre at: www.fipr.org/rip#media
Clause 2 BY THE LORD BASSAM OF BRIGHTON
Page 5, line 37, leave out subsections (11) and (12)
and
Clause 21 BY THE LORD BASSAM OF BRIGHTON
Page 26, line 12, leave out subsections (8) and (9)
[FIPR] Surprising. Relinquishes power to subsequently modify definition of
communications data under secondary powers.
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Clause 10 BY THE LORD BASSAM OF BRIGHTON
Page 13, line 26, leave out subsection (10) and insert--
("(10) For the purposes of this section--
(a) the scheduled parts of an interception warrant are any provisions of
the warrant that are contained in a schedule of identifying factors
comprised in the warrant for the purposes of section 8(2); and
(b) the modifications that are modifications of the scheduled parts of an
interception warrant include the insertion of an additional such schedule in
the warrant;
and references in this section to unscheduled parts of an interception
warrant, and to their modification, shall be construed accordingly.")
[FIPR] Purpose totally unclear - perhaps related to "cart-before-horse"
problem of overlapping warrants raised by FIPR
http://www.fipr.org/rip/OverRideCertificates.htm
=======================
Clause 49 BY THE LORD BASSAM OF BRIGHTON
Page 54, line 31, leave out from beginning to ("performance") in line
32 and insert ("necessary for the purpose of securing the effective exercise
or proper")
Attempt to fix infamous 49(2)(b)(ii)
Will now read: "necessary for the purpose of securing the effective exercise
or proper performance by any public authority of any statutory power or
statutory duty"
OR full monty
"If any person with the appropriate permission under Schedule 2 believes, on
reasonable grounds (a) that a key to the protected information is in the
possession of any person, (b) that the imposition of a disclosure
requirement in respect of the protected information is (i) necessary for the
purpose of securing the effective exercise or proper performance by any
public authority of any statutory power or statutory duty (c) that the
imposition of such a requirement is proportionate to what is sought to be
achieved by its imposition, and (d) that it is not reasonably practicable
for the person with the appropriate permission to obtain possession of the
protected information in an intelligible form without the giving of a notice
under this section, (deep breath) the person with that permission may, by
notice to the person whom he believes to have possession of the key, impose
a disclosure requirement in respect of the protected information"
[FIPR] BUT...this still means that the White Fish Authority can get your
private key if they can persuade a judge that they need it.
=======================
Clause 49 BY THE LORD BASSAM OF BRIGHTON
Page 55, line 18, at end insert--
("and the time specified for the purposes of paragraph (f) must allow a
period for compliance which is reasonable in all the circumstances.")
[FIPR] This means that the time allowed to comply with a notice cannot be so
short that you are consequently stitched up.
=======================
Clause 51 BY THE LORD BASSAM OF BRIGHTON
Page 58, line 15, after ("police") insert ("or by a member of Her
Majesty's forces who is a member of a police force")
Page 58, line 20, at end insert ("who is not a member of a police
force")
[FIPR] Tidying ? unclear
=======================
Clause 51 BY THE LORD BASSAM OF BRIGHTON
Page 58, line 40, at end insert--
("(6) Where a direction for the purposes of subsection (1) is given by
a chief officer of police, by the Commissioners of Customs and Excise or by
a member of Her Majesty's forces, the person giving the direction shall give
a notification that he has done so--
(a) in a case where the direction is given--
(i) by a member of Her Majesty's forces who is not a member of a police
force, and
(ii) otherwise than in connection with activities of members of Her
Majesty's forces in Northern Ireland,
to the Intelligences Services Commissioner; and
(b) in any other case, to the Chief Surveillance Commissioner.
(7) A notification under subsection (7)--
(a) must be given not more than seven days after the day of the giving of
the direction to which it relates; and
(b) may be given either in writing or by being transmitted to the
Commissioner in question by electronic means.")
[FIPR] Notify relevant Commissioner within seven days when a key is demanded
(but not Interception Commissioner for interception ??)
=======================
Clause 55 BY THE LORD BASSAM OF BRIGHTON
Page 62, line 7, at end insert--
("(4) Subject to subsection (6), where any relevant person incurs any
loss or damage in consequence of--
(a) any breach by a person to whom this section applies of the duty imposed
on him by subsection (2), or
(b) any contravention by any person whatever of arrangements made in
pursuance of that subsection in relation to persons under the control of a
person to whom this section applies, the breach or contravention shall be
actionable against the person to whom this section applies at the suit or
instance of the relevant person.
(5) A person is a relevant person for the purposes of subsection (4) if
he is--
(a) a person who has made a disclosure in pursuance of a section 49 notice;
or
(b) a person whose protected information or key has been disclosed in
pursuance of such a notice
and loss or damage shall be taken into account for the purposes of that
subsection to the extent only that it relates to the disclosure of
particular protected information or a particular key which, in the case of a
person falling with paragraph (b), must be his information or key.
(6) For the purposes of subsection (5)--
(a) information belongs to a person if he has any right that would be
infringed by an unauthorised disclosure of the information; and
(b) a key belongs to a person if it is a key to information that belongs to
him or he has any right that would be infringed by an unauthorised
disclosure of the key.
(7) In any proceedings brought by virtue of subsection (4), it shall be
the duty of the court to have regard to any opinion with respect to the
matters to which the proceedings relate that is or has been given by a
relevant Commissioner.
(8) In this section "relevant Commissioner" means the Interception of
Communications Commissioner, the Intelligence Services Commissioner, the
Investigatory Powers Commissioner for Northern Ireland or any Surveillance
Commissioner or Assistant Surveillance Commissioner.")
[FIPR] Allow authorities with custody of seized keys to be sued for damages
on grounds only that SAFEGUARDS NOT ADHERED TO (no strict liability)
=======================
Clause 57 BY THE LORD BASSAM OF BRIGHTON
Page 64, line 29, leave out from ("State") to end of line 32 and
insert ("after consultation with the Interception of Communications
Commissioner, shall--
(a) make such technical facilities available to the Commissioner, and
(b) subject to the approval of the Treasury as to numbers, provide the
Commissioner with such staff,
as are sufficient to secure that the Commissioner is able properly to carry
out his functions.")
[FIPR] Given Interception Commissioner technical facilities and staff (but
not necessarily technical staff)
=======================
Clause 58 BY THE LORD BASSAM OF BRIGHTON
Page 65, line 31, at end insert--
("( ) The Interception Commissioner may also, at any time, make any
such other report to the Prime Minister on any matter relating to the
carrying out of the Commissioner's functions as the Commissioner thinks
fit.")
[FIPR] Allow Interception Commissioner to shout call-the-cops anytime to PM
=======================
Clause 60 BY THE LORD BASSAM OF BRIGHTON
Page 67, line 25, at end insert--
("( ) The Intelligence Services Commissioner may also, at any time,
make any such other report to the Prime Minister on any matter relating to
the carrying out of the Commissioner's functions as the Commissioner thinks
fit.")
[FIPR] Ditto Intelligence Services Commissioner
=======================
Clause 65 BY THE LORD BASSAM OF BRIGHTON
Page 71, line 10, after ("services;") insert--
("( ) they are proceedings brought by virtue of section 55(4);")
Page 72, line 8, at end insert--
("but conduct does not take place in challengeable circumstances to the
extent that it is authorised by, or takes place with the permission of, a
judicial authority")
Page 72, leave out lines 16 to 19 and insert--
("(d) a permission for the purposes of Schedule 2 to this Act;
(e) a notice under section 49 of this Act; or")
Page 72, line 36, at end insert--
("(11) In this section "judicial authority" means--
(a) any judge of the High Court or of the Crown Court or any Circuit Judge;
(b) any judge of the High Court of Justiciary or any sheriff;
(c) any justice of the peace;
(d) any county court judge or resident magistrate in Northern Ireland;
(e) any person holding any such judicial office as entitles him to exercise
the jurisdiction of a judge of the Crown Court or of a justice of the
peace.")
Allows complaint to Tribunal for any type of decryption notice EXCEPT those
authorised by judges. Previously, decryption notice under Pt.III of Police
Act 1997 (police self-authorised, approved by surveillance Commissioner)
would not have been allowed before Tribunal - any other examples ? PACE
warrants usually judicially authorised, but exceptions ?...
=======================
Clause 73 BY THE LORD BASSAM OF BRIGHTON
Page 81, line 46, leave out ("(4)") and insert ("(4)(a) or (c) to
(g)")
Unclear (need check against version with line-numbers)
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Clause 78 - (boring)
Some tidying of positive/negative resolution procedure on 2nd-ry powers
=======================
--
Caspar Bowden Tel: +44(0)20 7354 2333
Director, Foundation for Information Policy Research
RIP Information Centre at: www.fipr.org/rip#media