Equipment interference code of practice

4 Implementation of targeted equipment interference warrants and telecommunications operators compliance

4.1 After the decision to issue a warrant has been approved by the Judicial Commissioner it will be forwarded to the person to whom it is addressed – in practice the relevant agency which submitted the application. The relevant agency will carry out the targeted equipment interference itself, and may (in addition to acting on its own) require other persons to provide assistance in giving effect to the warrant.

4.2 Section 128 of the Act permits a number of agencies to serve a warrant on telecommunications operators. This includes the Police Service of Scotland. Before serving the warrant on the telecommunications operators, the Scottish Ministers will be required to approve the steps required for giving effect to the warrant. Approval will be given if the Scottish Ministers consider it to be necessary for the telecommunications operator to take the required steps and the steps are proportionate to what is sought to be achieved.

4.3 Where a copy of a targeted equipment interference warrant has been served on anyone providing a telecommunications service, or who has control of a telecommunications system in the UK, that person is under a duty to take all such steps for giving effect to the warrant as are notified to him or her by or on behalf of the person to whom the warrant is addressed.

4.4 For the purpose of requiring any person to provide such assistance, the relevant agency may serve a copy of the warrant on any person, inside or outside the UK, who is required to provide assistance in relation to that warrant ^[12] .

4.5 Section 127 of the Act provides that service of a copy of a warrant on a person outside the UK may (in addition to electronic or other means of service) be effected in any of the following ways:

• by serving it at the person's principal office within the UK or, if the person does not have an office in the UK, at any place in the UK where the person carries on business or conducts activities;
• at an address in the UK specified by the person for service;
• by making it available for inspection at a place in the UK to the person or to someone acting on the person's behalf (if neither of the above two methods are reasonably practicable). The person to whom the warrant is addressed must take steps to bring the contents of the warrant to the attention of the relevant person.

Provision of reasonable assistance to give effect to a warrant

4.6 Any telecommunications operator, or any person who offers or provides a telecommunications service to the UK or has control of a telecommunications system located wholly or partly in the UK, may be required to provide assistance in giving effect to a targeted equipment interference warrant. A warrant can only be served on a person who is considered by the relevant agency to be able to provide the assistance required by the warrant. For the avoidance of doubt, in appropriate circumstances, this does not prevent the relevant agencies and telecommunications operators working co-operatively (without the need for service of a copy of a targeted equipment interference warrant in accordance with section 127 of the Act).

4.7 In the case of warrants issued to specified law enforcement officers, the Act places a requirement on providers to take all such steps for giving effect to the warrant as were approved by the Scottish Ministers and as are notified to the telecommunications operator by or on behalf of the law enforcement officer to whom the warrant is addressed (section 128(2) of the Act). Sections 128(2) and (4) of the Act ensures that the steps that providers are required to take are limited to those that the Scottish Ministers have expressly approved as necessary and proportionate to what is sought to be achieved by them. The relevant agencies should endeavour to work co-operatively with persons providing assistance in giving effect to warrants, and should seek to implement warrants on a collaborative basis. Assistance sought will typically comprise (but may not be limited to) the provision of infrastructure by a telecommunications operator, or details about the technical specification of relevant equipment.

4.8 When requesting assistance that would involve employees of a telecommunications operator, the Police Service of Scotland and the Scottish Ministers should consider during the authorisation process:

• what measures should be taken by the relevant agencies to best instruct and support any telecommunications operator employees required to assist with implementation; and
• what measures should be taken to minimise any impact upon the telecommunications operator and their employees so far as is practicable.

4.9 In some cases the relevant agencies may consider that the same material can be acquired either with assistance of a telecommunications operator or independently. The relevant agencies should consider the merits of either approach in the context of the specific operation; this should include the consideration of the criteria in paragraph 3.12.

4.10 The steps which may be required by telecommunications operators are limited to those which it is reasonably practicable to take (section 128 (5)). What is reasonably practicable will be considered on a case-by-case basis, taking into account the individual circumstances of the telecommunications operator, and should be agreed after consultation between the telecommunications operator and the Scottish Government. Such consultation is likely to include consideration of a number of factors including, but not limited to, the technical feasibility and likely cost of complying with any steps notified to the telecommunications operator. As part of the consultation, the telecommunications operator may raise any other factor that they consider relevant to whether the taking of such steps is reasonably practicable. The duty is enforceable, for example on application for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or any other appropriate relief.

4.11 Where the relevant agencies require the assistance of a telecommunications operator in order to implement a warrant, it must provide one or more of the following to the telecommunications operator:

• a copy of the signed and dated warrant with the omission of any schedule contained in the warrant; or
• a copy of one or more schedules contained in the warrant with the omission of the remainder of the warrant.

4.12 An optional covering document from the relevant agencies (or the person acting on behalf of the agencies) may also be provided requiring the assistance of the provider and specifying any other details as may be necessary. Contact details with respect to the relevant agencies will either be provided in this covering document or will be available in the handbook provided to all telecommunications operators who maintain a technical capability.

4.13 Section 99(5)(b) of the Act makes lawful any conduct undertaken by a person in pursuance of requirements imposed by or on behalf of a person to whom a targeted equipment interference warrant is addressed. This therefore authorises activity undertaken by telecommunications operators in giving effect to a warrant that would otherwise constitute an offence under the CMA, Data Protection legislation or other relevant legislation. Where assistance is required that - but for section 99(5)(b) of the Act - would constitute an offence, the law enforcement chief should consider ways in which the warrant can be executed so as to minimise such activity and the need to rely on section 99(5)(b); this is part of the consideration of whether the activity authorised by the warrant is proportionate and cannot be achieved by less intrusive means.