Guidance

Handling arrangements

Published 12 June 2018

Arrangements for the retention and use of bulk communications data acquired pursuant to directions under Section 94 of the Telecommunications Act 1984, October 2018

These Handling Arrangements (Arrangements) are made under section 2(2)(a) of the Security Service Act 1989 (the SSA 1989) and 4(2)(a) of the Intelligence Services Act 1994 (the ISA 1994) and apply as specified below to the Security Service (MI5) and the Government Communications Headquarters (GCHQ) with respect to their retention and use of bulk communications data (BCD) that has been acquired under section 94 of the Telecommunications Act 1984 (section 94).

MI5 and GCHQ have acquired BCD under the terms of directions issued under section 94 and the arrangements for their acquisition and use of such BCD are currently described in arrangements for the acquisition of bulk communications data pursuant to directions under section 94 of the Telecommunications Act 1984, published on 4 November 2015 (November 2015 Arrangements).

MI5 and GCHQ propose that the current section 94 directions (for the acquisition of BCD) will be replaced by equivalent bulk acquisition warrants issued under Part 6 Chapter 2 of the Investigatory Powers Act 2016 (IPA). When replaced by an equivalent IPA warrant, the relevant section 94 direction will be cancelled. These Arrangements (see further below) apply, as from the date of cancellation of a section 94 direction, to any BCD acquired by MI5/GCHQ under that direction.

The rules set out in these Arrangements are mandatory and are required to be followed by staff in MI5/GCHQ. References in these Arrangements to ‘staff’ are to staff in MI5/GCHQ and persons working under the authority of MI5/GCHQ unless specified otherwise. Failure by staff to comply with these Arrangements may lead to disciplinary action, which can include dismissal and prosecution.

BCD covered by these Arrangements

Following cancellation of a section 94 direction, MI5 and GCHQ will continue to hold (further to the SSA 1989 and ISA 1994, respectively) BCD that they have obtained under that section 94 direction. These Arrangements apply to such BCD (“Retained BCD”) as from the date of cancellation of the section 94 direction under which that Retained BCD was acquired.

As from the date when Retained BCD is covered by these Arrangements the November 2015 Arrangements shall (subject to paragraph 9 below) cease to apply to Retained BCD.

The use of, access to, disclosure, deletion and oversight of Retained BCD

MI5’s and GCHQ’s:

• use of Retained BCD
• access to Retained BCD
• disclosure of Retained BCD
• deletion of Retained BCD

will be in accordance with (and will follow):

• the regime under the IPA
• the Code of Practice for the Bulk Acquisition of Communications Data
• MI5’s and GCHQ’s respective internal arrangements and policies relating to BCD acquired under Part 6 Chapter 2 of the IPA

In relation to any use of, access to, disclosure of, or deletion of Retained BCD, MI5 and GCHQ staff are, accordingly, required to treat Retained BCD for all purposes as if it were BCD that had been acquired under a warrant under Part 6 Chapter of the IPA.

MI5’s and GCHQ’s review of the ongoing retention of Retained BCD shall continue to be undertaken at intervals of no less than six months, as described in section 4.5 of the November 2015 Arrangements.

IPCO will continue to have oversight of MI5’s and GCHQ’s handling of Retained BCD further to section 229(1)(b) of the IPA.

These Handling Arrangements for the retention and use of bulk communications data acquired pursuant to Directions under section 94 of the Telecommunications Act 1984 replace those published alongside the draft Investigatory Powers Bill in November 2015.