In this feature l spying incidents l press coverage l judicial approval Sunset over riPa With investigatory powers for trading standards in disarray after local authority gaffes affecting RIPA, and the law still playing catch up with online criminality, CTSI lead officer for e-crime Paul Thompson gives an overview of events from his perspective T he Regulation of Investigatory Powers Act 2000, or RIPA, came into force on 26 July 2000 to ensure the activities of law enforcement the intelligence agencies, police, Customs & Excise and, of course, local authorities/ trading standards were properly regulated before the Human Rights Act 1998 (HRA) came into force in October 2000. Since its inception, RIPA has consistently provided headline material for the press, with local authorities often portrayed as the perpetrators of unjust wrongdoings contrary to the HRA. These range from stories about spying on where parents really live when making school applications, to covert operations with spy cameras engaged to catch Enid allowing her beloved pooch to defecate on the local common allshrouded in plots that would make Ian Fleming proud. While the press often sensationalised these stories, one cant help but agree that RIPA wasnt exactly designed to combat this type of criminality: phone tapping terrorists yes; covert surveillance of organised gangs yes; but attempting to catch Enid and her pooch on the common surely not? Unfortunately, trading standards has been firmly tarred with the same brush under the local authority umbrella, despite the higher level of criminality that investigative officers deal with. After this frenzy of negative publicity, the political establishment surrendered to the will of the press and, in 2012, a further barrier was introduced for local authorities. This came in the form of a requirement for judicial approval in relation to RIPA applications rightly, in my opinion for slapping on the six-month minimum custodial penalty for RIPA requests, but wrongly for requiring judicial approval. The latter, amid the tsunami of public cuts and the impact of these on the service, was tantamount to kicking someone when they were down. Since 1 December 2014, local authorities that wish to acquire communications data are required to make requests through a single point of contact (SPoC) at the National Anti-Fraud Network (NAFN).1 This will place an additional financial burden on those local authorities that do not subscribe to NAFN, resulting in inaccessibility to communications data. The Data Retention and Investigatory Powers Act 2014 (DRIPA), which essentially requires telecommunications operators to retain communications data, includes a sunset clause* that DRIPA be repealed on 31 December 2016. This has resulted, in part, in a review of the current UK investigatory powers legislation, including RIPA and DRIPA. However, a High Court ruling that sections 1 and 2 of DRIPA should be dis-applied to bring UK legislation in line with EU law, suspended until 31 March 2016, may also have an impact on the timing of the review process. Another requirement of DRIPA (section 7) was for a review of investigatory powers to be carried out by the governments independent reviewer of terrorism legislation, and for it to be laid before parliament by 1 May 2015.2 The request for evidence, in relation to the use of communications data by local authorities, resulted in a response from CTSI and a number of local authority trading standards services. Accordingly, David Anderson QC makes reference to trading standards in his review, and this, at least, ensures the ongoing involvement and consideration of the service in relation to the development of the Bill. Indeed, the report recommends the removal of the judicial approval process for trading standards as part of the RIPA authorisation process. In May 2015, after a successful bid for funding from the National Trading Standards Board, Halton Trading Standards obtained counsels opinion in relation to social networking sites (SNS). The opinion considered the acquisition and use of communications data in relation to SNS3 and raised a number of issues for the online investigator to consider too detailed to list in this article, but an essential read for those involved in online investigations. So after RIPA and DRIPA, what will the Investigatory Powers Bill bring, and what will the implications be for local authorities and, more specifically, trading standards? Will it result in increased powers to provide online investigating officers with the necessary powers to investigate in the ever-changing cyber world? Or will the rights of individuals supersede the needs of investigative officers, dampening down their ability to enforce duties bestowed on them by current legislation? Will the resulting aftermath open up the online world for criminals both individuals and organised crime essentially to trade carefree in the new virtual high street? Who knows? What is known or at least anticipated is that, sooner rather than later, the new Bill consultation process will be open. It will provide the service with an opportunity to put forward its argument for the necessary powers to carry out its legislative duties, so watch this space. A final thought: when we in the service talk about RIPA, traffic data and communications data, perhaps we could position ourselves in a brighter light by talking about trading standards and not local authorities. This would allow the conversation to focus on the higher levels of criminality and the issues faced by investigating officers, and not whether Edna and her pooch have been down to the common. When we talk about RIPA, traffic data and communications data, perhaps we should talk about trading standards and not local authorities, enabling the conversation to focus on the higher levels of criminality and not whether Edna and her pooch have been down to the common References: 1 Home Office - Acquisition and Disclosure of Communications Data Code of Practice March 2015. 2 A Question of Trust, report of the Investigatory Powers Review. 3 A copy of the opinion can be accessed via the electronic crime community on the Knowledge Hub. *A sunset clause is a provision in a Bill that gives it an expiry date once it is passed into law. Sunset clauses are included in legislation when it is felt that parliament should have the chance to decide on its merits again after a fixed period. Credits Published You might also like Paul Thompson is an enforcement officer Tuesday 29 September, 2015 Damage control October 2015 (criminal) at Halton Trading Standards and a CTSI lead officer for e-crime. Images: Macrovector / bikeriderlondon / Shutterstock To share this page, click on in the toolbar