BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
of Agriculture, Fisheries and Food [1968] AC 997 [that a public body is
required to exercise its discretionary powers to promote (and not to circumvent)
the policy and the objects of the legislation which created those powers] (for
example, because it is not technically feasible to obtain the communications via
RIPA interception), and it is necessary and proportionate for the Intelligence
Services to obtain those communications. In these circumstances, the question
whether the request should be made would be considered and decided upon by
the Secretary of State personally. Any such request would only be made in
exceptional circumstances, and has not occurred as at the date of this statement.
...
2. Where the Intelligence Services receive intercepted communications content or
communications data from the government of a country or territory outside the United
Kingdom, irrespective of whether it is/they are solicited or unsolicited, whether the
content is analysed or unanalysed, or whether or not the communications data are
associated with the content of communications, the communications content and data
are, pursuant to internal ‘arrangements’, subject to the same internal rules and
safeguards as the same categories of content or data, when they are obtained directly
by the Intelligence Services as a result of interception under RIPA.
3. Those of the Intelligence Services that receive unanalysed intercepted material
and related communications data from interception under a s.8(4) warrant have
internal ‘arrangements’ that require a record to be created, explaining why access to
the unanalysed intercepted material is required, before an authorised person is able to
access such material pursuant to s.16 of RIPA.
4. The internal ‘arrangements’ of those of the Intelligence Services that receive
unanalysed intercepted material and related communications data from interception
under a s.8(4) warrant specify (or require to be determined, on a system-by-system
basis) maximum retention periods for different categories of such data which reflect
the nature and intrusiveness of the particular data at issue. The periods so specified (or
determined) are normally no longer than 2 years, and in certain cases are significantly
shorter (intelligence reports that draw on such data are treated as a separate category,
and are retained for longer). Data may only be retained for longer than the applicable
maximum retention period where prior authorisation has been obtained from a senior
official within the particular Intelligence Service at issue on the basis that continued
retention of the particular data at issue has been assessed to be necessary and
proportionate (if the continued retention of any such data is thereafter assessed no
longer to meet the tests of necessity and proportionality, such data are deleted). As far
as possible, all retention periods are implemented by a process of automated deletion
which is triggered once the applicable maximum retention period has been reached for
the data at issue. The maximum retention periods are overseen by, and agreed with the
Commissioner. As regards related communications data in particular, Sir Anthony
May made a recommendation to those of the Intelligence Services that receive
unanalysed intercepted material and related communications data from interception
under a s8(4) warrant, and the interim Commissioner (Sir Paul Kennedy) has recently
expressed himself to be content with the implementation of that recommendation.
5. The Intelligence Services’ internal ‘arrangements’ under [the Security Services
Act 1989], [the Intelligence Services Act 1994] and ss.15-16 of RIPA are periodically
reviewed to ensure that they remain up-to-date and effective. Further, the Intelligence
Services are henceforth content to consider, during the course of such periodic
reviews, whether more of those internal arrangements might safely and usefully be put
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