Investigation of Protected Electronic Information
What the Tribunal can Investigate
On 1 October 2007 Part III of the Regulation of Investigatory Powers Act came into force.
Part III of RIPA contains provisions designed to maintain the effectiveness of existing law enforcement powers in the face of increasing criminal and hostile intelligence use of encryption, the means of scrambling electronic information into a secret code of letters, numbers and signals. Encrypted information cannot be unscrambled without a decoding key. Specifically, Part III introduces a power to require disclosure of protected (encrypted) data.
Parliament has now approved the Code of Practice for the investigation of protected electronic information. It gives power to specified authorities to require disclosure in respect of protected electronic information. The Code of Practice provides guidance for the authorities to follow.
Any public authority may, in the exercise of its functions, seek permission to serve a notice in relation to protected information that has already been obtained lawfully or in relation to protected information which is not yet in their lawful possession where that have a reasonable expectation of obtaining it.
A notice can only be served on the following grounds:
• Interests of national security
• Prevention/ detection of crime
• Interests of economic well-being of United Kingdom; or
• For the purpose of securing the effective exercise or proper performance by any public authority of any identified statutory power or statutory duty
You can complain to the Tribunal if you have been given a notice under section 49 relating to investigation of electronic data protected by encryption.
The Tribunal has full powers to investigate and decide complaints within its jurisdiction, which includes the giving of a notice under section 49 or any disclosure or use of a key to protected information.
