Surveillance & Interception

Oracle Solicitors has an unparalleled wealth of knowledge in this area. We advise clients on the legality of interception and surveillance activities and can provide expert advice in relation to the strategy of dealing with Government requests, obligations to assist or divulge material, disclosure obligations, voluntary disclosure via the information gateways, and regarding litigation.

The Regulation of Investigatory Powers Act 2000 (“RIPA”) sets out limits on how surveillance can be carried out, and who is authorised to carry it out. There are numerous different types of surveillance, and their legality depends largely on who is carrying them out and why. In regulating surveillance and interception, the legislation attempts to strike a balance between the individual’s right to privacy as protected by the European Convention on Human Rights and the requirements of investigators.

Intrusive surveillance

Intrusive surveillance is designed to gain information or intelligence from surveilling the more private areas of an individual’s life, inside their home or private vehicle. Intrusive surveillance will only be authorised for the most serious of investigations and must be crucial to the investigation or prevention of serious crime, or the maintenance of UK national security and economic health.

Intrusive surveillance must be the best available option to be considered, there are some circumstances in which surveillance from outside could be considered to be intrusive surveillance, if it would be possible to gain the information sought by an intrusive surveillance operation via other means, those other means should be considered first. If surveillance equipment is used outside a private residence, but it is advanced enough that it surveils to the same standard that equipment placed inside the residence could, this would count as intrusive surveillance, regardless of where the surveillance equipment is placed.

Directed surveillance

A local authority can only instigate directed surveillance to detect and prevent crime, for example with CCTV cameras in a town centre to spot and deter troublemakers. Higher authorities, such as the police, can authorise directed surveillance for other more specialised purposes. Directed surveillance is a less invasive form of surveillance, as it is generally conducted in a more public arena, and is not considered to violate an individual’s privacy in the same way that intrusive surveillance would.

Directed surveillance can also be used to monitor a private place, such as an individual’s home. This is considered acceptable under directed surveillance limitations, as long as the surveillance equipment used is not so sophisticated as to match the surveillance capabilities of equipment that would be used inside the building or vehicle.

Surveilling someone in a public place is a common way of carrying out directed surveillance, by way of listening devices or taking photographs. Naturally, whilst surveilling in a public place, it is likely that others will also be surveilled this should be taken into account when authorising the surveillance.

Interception of communications

The Investigatory Powers Act 2016, allows for a number of different organisations to carry out interception of communications and other forms of monitoring. Intercepting a communication in transmission can refer to a number of different communication monitoring techniques, from phone tapping to intercepting someone’s mail or email. Different forms of surveillance vary on how they can be used and which organisations can be permitted to use them.

Interception warrant

No organisation can legally intercept communication in transmission, whether they are the police, the Secret Service, or HM Revenue and Customs, without an interception warrant granted by the home secretary.

The violation of privacy must also be worth the information and evidence gained, it must justify the means. This could depend on the type of content that is going to come up in communication.

The Secretary of State is the primary decision-maker under the Act as to whether a warrant should be issued. Parliament has however designated Judicial Commissioners as an independent safeguard to ensure that warrants that are issued satisfy the requirements of necessity and proportionality, which include the requirement that they are in accordance with the law.

If a phone conversation or email is likely to contain highly personal information about the individual being monitored, such as their medical state or their political beliefs, the home secretary and/or Judicial Commissioner should consider this additional violation of privacy.

It is often difficult to find this out, an individual making a complaint about having their communications intercepted will not be allowed to see the government’s reasons for allowing it to happen. Criminal sanctions also exist for unauthorised use. This makes it difficult to determine that an interception warrant was false.

However, if an interception warrant has been found to have been wrongly issued, the Investigatory Powers Tribunal can order that the records of the intercepted transmissions be destroyed and that the victim of the unfair surveillance receive compensation.

Interception of mail and post

An individual can claim for compensation for damage caused by the non-compliance with privacy rights as well as damage and connected distress caused by any contravention of the Data Protection Act. This can include violation of one or more of the Data Protection Principles. Intentionally intercepting an individual’s mail is illegal, unless the power to do so has been gained through an interception warrant. Opening someone else’s post that has been delivered to your address is also illegal.

However, take note that these rules will cover mail delivered by anything that could be described as a “postal system” according to RIPA rule. If the individual can prove that they have been inflicted financial or physical damage or damage and distress as the consequence of a breach of the DPA, and the data controller is not able to prove that he or she has taken the proper amount of care to comply with the relevant requirement, then the individual will be allowed to claim compensation under section 13.

The individual can only claim damages for distress alone where the violation relates to the processing of personal data for special purposes.

Other legal communications interception

A business has the right to monitor their communication systems such as inbound phone calls and their email network to determine whether or not the communications made are relevant to their business, and that no one is gaining unauthorised access to the system or abusing it to engage in criminal or otherwise unwanted activities. The interception of communications is authorised in some other circumstances, under the Lawful Business Practice (LBP) regulations.

An example of this could be a company monitoring the work email accounts and internet usage of their employees, to ensure that they are working at the time that they are supposed to be working. Communications interception is authorised in certain other cases.

How Oracle Solicitors can help you?

If you want claims for compensation for damage and stress caused by any violation of the DPA, or damage caused by the non-compliance of the individual’s rights as mentioned previously you can contact our lawyers.

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