IPCO Annual Report 2017
from them is reasonably practical and the extent to which the data required is inextricably
linked with other data;
• the agency assesses whether the data can be made available by means of a s.94 direction
(this process will involve further liaison with the CSP); and
• the agency determines whether the bulk acquisition of communications data is
appropriate under a s.94 direction and, if it is, prepares a detailed submission for the
Secretary of State (Home Secretary or Foreign Secretary).
The submission
9.13
The submission is sent to the Secretary of State by the head of MI5 or GCHQ. They provide
information which will enable the Secretary of State to decide whether (i) acquiring and
retaining the relevant BCD is necessary in the interests of national security or international
relations; (ii) whether the acquisition, retention and selection would be proportionate to
what is sought to be achieved; (iii) whether there is a less intrusive method of obtaining the
information or achieving the national security objective; and (iv) the level of collateral intrusion
that will be caused by acquiring and exercising the BCD warrant the agency is requesting.
9.14
The submission will rehearse any national security or international relations arguments as
to why the Secretary of State cannot lay the Direction before both Houses of Parliament in
accordance with section 94(4) of the Telecommunications Act.
9.15
If the Secretary of State agrees the Direction, it is served on the relevant CSP. Before the
CSP provides any data to the agency, they make arrangements to ensure that the data is
shared securely.
9.16
Both MI5 and GCHQ have kept a central record of the s.94 directions given by the Home
Secretary or Foreign Secretary. This central record includes (i) the date the direction was
given; (ii) the name of the Secretary of State giving the direction; (iii) the CSP to which the
direction relates and the date the direction was served on the CSP; and (iv) a description
of the activity the CSP is required to carry out.
How IPCO oversees these powers
9.17
The Prime Minster wrote to the then Interception of Communications Commissioner (IoCC)
in January 2015 to ask him to extend his oversight to include directions given by a Secretary
of State under s.94. The Prime Minister acknowledged that the IoCC had previously provided
limited non‑statutory oversight of how MI5 used one particular set of directions and now
wished to extend that oversight.
9.18
In October 2015 the IoCC started his first review of the directions issued under s.94 with
a view to (i) identifying the extent to which the intelligence agencies used these directions;
(ii) assessing what a comprehensive oversight and audit function of s.94 directions would
look like; and (iii) assessing whether the systems and procedures in place for s.94 directions
were sufficient to comply with the legislation and any relevant policies.
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