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-----Original Message----- From: Chartered Library and Information Professionals [mailto:[log in to unmask]] On Behalf Of Tim Buckley Owen Sent: 28 October 2005 10:10 To: [log in to unmask] Subject: Police and security services have power to scrutinise library records CILIP: the Chartered Institute of Library and Information Professionals 7 Ridgmount St, London WC1E 7AE. Tel: 020 7255 0500 Textphone: 020 7255 0505 Fax: 020 7255 0501 Email: [log in to unmask] News from CILIP Friday 28 October 2005 For immediate release (Please copy to online discussion lists) Police and security services have power to scrutinise library records Legal advice commissioned by CILIP confirms all library sectors can be investigated Police and security services investigating serious crime or terrorism in England and Wales have the right to seek information on books borrowed or Internet sites accessed by certain library users, a barrister has told CILIP: the Chartered Institute of Library and Information Professionals. They can also mount surveillance operations in libraries if they believe that national security is at risk, to prevent or detect crime, or in the interests of public safety. Although the position is not clear cut, the powers are probably broad enough to permit the agencies concerned to insist on the installation of spyware in an appropriate case, the advice says. Legal advice on rights of access to confidential information on library users was requested by CILIP following a number of instances where police had sought information from CILIP members on library users' activities. The advice was first presented to CILIP members by the Institute's President Deborah Shorley at its Annual General Meeting in London on October 27. According to the advice, provided to CILIP by public law and human rights specialist James Eadie, the police could apply for an order authorising access to library records under the Police and Criminal Evidence Act 1984 where a serious arrestable offence had been committed, or under the Terrorism Act 2000, where they believed that the material was likely to be of substantial value to a terrorist investigation. Surveillance operations in libraries are also possible, under the Regulation of Investigatory Powers Act 2000, the advice continues. This could include monitoring persons' activities or communications, recording anything monitored with a surveillance device, and engaging in covert surveillance to obtain private information about a person. Finally, under the Intelligence Services Act 1994, the Secretary of State can issue a warrant authorising the security services to take action to protect national security against threats such as terrorism or to support the police. "We live in difficult times which call for difficult decisions about access to information," Deborah Shorley said. "As librarians and information professionals we must do all we can to help protect our society against terrorism. We need to be vigilant, but we must not overreact. We have a duty of client confidentiality and so we cannot collude with fishing expeditions by the authorities. We expect our members to respect the law of the land, and this advice tells us just where we stand." "It's important to note that this advice could apply to all library sectors," added CILIP's Chief Executive Bob McKee. "It's not just restricted to public libraries." A summary of the legal opinion appears below and is also available on the CILIP web site at www.cilip.org.uk/professionalguidance/rightsofaccess/default.htm. Personal members of CILIP can access the full text in the member-only area of CILIP's web site - www.cilip.org.uk - and CILIP is also sending copies to its members who head public, academic and government libraries. The full text of the advice is also available to the media from: Tim Buckley Owen, Head of Membership, Marketing & Media. Tel: 020 7255 0652 Email: [log in to unmask] Notes to Editors Since this legal advice was requested and received by CILIP, the Terrorism Bill has received its second reading in the Commons. CILIP has joined leaders of the other principal representative organisations of the United Kingdom library community in expressing to Home Secretary Charles Clarke its serious reservations about the Bill. CILIP: the Chartered Institute of Library and Information Professionals is the leading professional body for librarians, information specialists and knowledge managers. It forms a community of around 35,000 people engaged in library and information work, of whom around 23,000 are CILIP Members and around 12,000 are regular customers of CILIP Enterprises. CILIP members work in all sectors, including business and industry, science and technology, further and higher education, schools, local and central government, the health service, the voluntary sector, national and public libraries. For more information about CILIP, please go to www.cilip.org.uk. SUMMARY OF LEGAL ADVICE OF JAMES EADIE IN RELATION TO ACCESS TO INFORMATION 1. This summary sets out the key elements of a more detailed advice given to CILIP in an Advice dated 27 September 2005 concerning the rights of the police and other security and intelligence services to demand access to confidential client information. The advice related to the law of England and Wales only. 2. The police have powers to apply to a court (currently a circuit judge) for production and removal of, or access to, material held by private persons. The relevant powers are contained in Part II of the Police and Criminal Evidence Act 1984 (PACE). The court has a discretion to make an order if five conditions are made out: 2.1. a serious arrestable offence has been committed; 2.2. the material is likely to be of substantial value (whether by itself or together with other material) to the investigation; 2.3. the material is likely to be relevant evidence; 2.4. other methods of obtaining the material have been tried and failed (or appear to be bound to fail); 2.5. ordering access is in the public interest having regard to the benefit likely to accrue to the investigation and to the circumstances in which the person in possession holds the information. Of these, the critical condition is likely to be whether or not the material is likely to be of substantial value to the investigation. 3. A similar power in the court on the application of the police is contained in the Terrorism Act 2000. The critical condition in this context requires it to be shown that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation. The powers of the court are wider than under PACE and include a power to require a person to state to the best of his knowledge and belief the location of the material applied for. 4. The powers to access information are not limited to the courts. The Regulation of Investigatory Powers Act 2000 (RIPA) makes detailed provision for lawful surveillance. The scheme of Part II of RIPA is to render lawful surveillance of the kind set out above if it is subject to an authorisation under Part II and that authorisation is complied with (section 27(1)). If that is the case, no civil liability attaches for any conduct which is incidental to any conduct so authorised. 5. Of most potential relevance to members of CILIP are the provisions dealing with "directed surveillance". The regime in summary is as follows: 5.1. Certain persons are designated as having power to grant authorisations for carrying out directed surveillance. They include senior police officers (superintendent and above) and members of the security services. 5.2. The test to be applied by the person authorising is whether he "believes" that the authorisation is necessary in the interests of national security, for the purpose of preventing or detecting crime, in the interests of public safety and that the authorised surveillance is proportionate. 5.3. This is accordingly a self-authorising regime involving the body that will operate the surveillance authorising itself without the need to go to an outside body (Secretary of State or court) for that purpose. The inherent safeguards, such as they are, are provided by the facts that 5.3.1. the authoriser needs to be a senior member of the police or security services; 5.3.2. Part IV of RIPA establishes an Intelligence Service Commissioner and Surveillance Commissioners including a Chief Surveillance Commissioner. They are holders of high judicial office. They have the function of keeping under review the exercise of the powers under Part II by the Security Services and others. They report to the Prime Minister at least annually, who then (subject to redaction/omissions justified on specified grounds such as national security) lays the reports before Parliament. Those who exercise the Part II powers are obliged to co-operate and provide information to the Commissioners. 5.4. RIPA also sets up a Tribunal, exercising judicially reviewing powers, to deal with complaints about the exercise of powers under RIPA - including, notably, complaints under the HRA. 6. Finally there are powers conferred on the Secretary of State under the Intelligence Services Act 1994 (ISA). Section 5 of the ISA empowers the Secretary of State to issue a warrant authorising the Security Service (MI 5), the Secret Intelligence Service (MI 6) or GCHQ to take "such action as is specified in the warrant in respect of any property so specified". The Secret Intelligence Service and GCHQ are not relevant in context because in their cases the power cannot be exercised in relation to property in the British Islands. 7. The Secretary of State's power arises if three conditions are met: 7.1. The Secretary of State thinks it necessary of the action to be taken for the purpose of assisting the carrying out of the statutory functions of the Security Service. These functions are set out in section 1 of the Security Service Act 1989 and include the protection of national security (in particular against threats of terrorism) and acting in support of the various police forces and police agencies. However, if the property in question is in the British Islands, there is a restriction. The conduct under investigation must constitute in effect a serious offence (involving the use of violence or for which a person could expect to be imprisoned for three years or more). 7.2. The Secretary of State is satisfied that the taking of the action is proportionate to what the action seeks to achieve. In this respect, section 2A of the ISA specifically requires consideration to be given to whether what is thought necessary to achieve by the warrant could reasonably be achieved by other means. 7.3. The Secretary of State is satisfied that satisfactory arrangements are in place for controlling the disclosure of the information obtained (essentially for the purposes of an ongoing investigation or proceedings). 8. Each of the relevant pieces of legislation includes tests in effect requiring account to be taken of human rights considerations. 9. Accordingly, there are a wide range of powers exercisable by the courts on the application of the police, by the police themselves, by the security services and by the Secretary of State at the behest of the security services. In some circumstances, those powers may overlap - allowing the authorities to choose the least onerous (for them) route for accessing otherwise private information. 10. These powers apply, if the conditions are satisfied, across library sectors; although the nature of the information in question (in particular the degree to which it is sensitive or private) may affect the issue whether or not the conditions are satisfied. Although the position is not clear cut, the powers are probably broad enough to permit the agencies concerned to insist on the installation of spyware in an appropriate case. James Eadie Blackstone Chambers, London Acting on instructions from Bates Wells, solicitors - Ends - This email is intended solely for the addressee. It may contain private and confidential information. If you are not the intended addressee, please take no action based on it nor show a copy to anyone. In this case, please reply to this email to highlight the error. Opinions and information in this email that do not relate to the official business of Nottingham Trent University shall be understood as neither given nor endorsed by the University. 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