BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
the terms of the Secretary of State’s certificate. Before a particular communication
may be accessed by an authorised person within the intercepting agency, the person
must provide an explanation of why it is necessary for one of the reasons set out in the
certificate accompanying the warrant issued by the Secretary of State, and why it is
proportionate in the particular circumstances. This process is subject to internal audit
and external oversight by the Interception of Communications Commissioner. Where
the Secretary of State is satisfied that it is necessary, he or she may authorise the
selection of communications of an individual who is known to be in the British
Islands. In the absence of such an authorisation, an authorised person must not select
such communications.
Definition of external communications
6.5. External communications are defined by RIPA to be those which are sent or
received outside the British Islands. They include those which are both sent and
received outside the British Islands, whether or not they pass through the British
Islands in the course of their transmission. They do not include communications both
sent and received in the British Islands, even if they pass outside the British Islands en
route. For example, an email from a person in London to a person in Birmingham will
be an internal, not external communication for the purposes of section 20 of RIPA,
whether or not it is routed via IP addresses outside the British Islands, because the
sender and intended recipient are within the British Islands.
Intercepting non-external communications under section 8(4) warrants
6.6. Section 5(6)(a) of RIPA makes clear that the conduct authorised by a
section 8(4) warrant may, in principle, include the interception of communications
which are not external communications to the extent this is necessary in order to
intercept the external communications to which the warrant relates.
6.7. When conducting interception under a section 8(4) warrant, an intercepting
agency must use its knowledge of the way in which international communications are
routed, combined with regular surveys of relevant communications links, to identify
those individual communications bearers that are most likely to contain external
communications that will meet the descriptions of material certified by the Secretary
of State under section 8(4). It must also conduct the interception in ways that limit the
collection of non-external communications to the minimum level compatible with the
objective of intercepting wanted external communications.
Application for a section 8(4) warrant
6.8. An application for a warrant is made to the Secretary of State. Interception
warrants, when issued, are addressed to the person who submitted the application. The
purpose of such a warrant will typically reflect one or more of the intelligence
priorities set by the National Security Council (NSC).
6.9. Prior to submission, each application is subject to a review within the agency
making the application. This involves scrutiny by more than one official, who will
consider whether the application is for a purpose falling within section 5(3) of RIPA
and whether the interception proposed is both necessary and proportionate.
6.10. Each application, a copy of which must be retained by the applicant, should
contain the following information:
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