PRIVACY INTERNATIONAL AND OTHERS v. THE UNITED KINGDOM DECISION
3. The Equipment Interference Code of Practice
26. The Code was published on 6 February 2015. Following a
consultation period it was brought into force on 14 January 2016. In the
introduction the Code states:
“1.1 This code of practice provides guidance on the use by the Intelligence Services
of section 5 of the Intelligence Services Act 1994 to authorise equipment interference
to which the code applies. It provides guidance on the procedures that should be
followed before equipment interference can take place under that provision, and on
the processing, retention, destruction and disclosure of any information obtained by
means of that interference.
...
1.4 There is no power for the Secretary of State to issue codes of practice in relation
to the powers and duties in section 7 of ISA. However, [the Secret Intelligence
Services] SIS and GCHQ should as a matter of policy ... comply with the provisions
of this code in any case where equipment interference is to be, or has been authorised
pursuant to section 7 of ISA in relation to equipment located outside the British
Islands.
...
7.4 If a member of SIS or GCHQ wishes to interfere with equipment located
overseas but the subject of the operation is known to be in the British Islands,
consideration should be given as to whether a section 8(1) interception warrant or a
section 16(3) certification (in relation to one or more extant section 8(4) warrants)
under the 2000 Act should be obtained in advance of commencing the operation
authorised under section 7. In the event that any equipment located overseas is
brought to the British Islands during the currency of the section 7 authorisation, and
the act is one that is capable of being authorised by a warrant under section 5, the
interference is covered by a ‘grace period’ of 5 working days (see section 7(10) to
7(14)). This period should be used either to obtain a warrant under section 5 or to
cease the interference (unless the equipment is removed from the British Islands
before the end of the period).
...”
27. By way of footnote, the Code explains that the approach outlined in
its paragraph 1.4 set out above is:
“without prejudice as to arguments regarding the applicability of the ECHR.”
28. The Code describes equipment interference as follows:
“1.6 ... any interference (whether remotely or otherwise) by the Intelligence
Services, or persons acting on their behalf or in their support, with equipment
producing electromagnetic, acoustic and other emissions, and (ii) information derived
from any such interference, which is to be authorised under section 5 of the 1994 Act
[ISA], in order to do any or all of the following:
(a) obtain information from the equipment in pursuit of intelligence requirements;
(b) obtain information concerning the ownership, nature and use of the equipment
in pursuit of intelligence requirements;
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