Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
During 2014 I have discussed with all the agencies and the
warrantry units the use of section 5 in a way which seemed to
me arguably too broad or "thematic". I have expressed my view
that:
• section 5 does not expressly allow for a class of
authorisation; and
• the words "property so specified" might be narrowly
construed, requiring the Secretary of State to consider a
particular operation against a particular piece of property as
opposed to property more generally described by reference for
example to a described set of individuals.
The agencies and the warrantry units argue that ISA refers to
action and properties which "are specified " which they interpret
to mean "described by specification". Under this interpretation
they consider that the property does not necessarily need to be
specifically identified in advance as long as what is stated in the
warrant can properly be said to include the property that is the
subject of the subsequent interference. They argue that
sometimes time constraints are such that if they are to act to
protect national security they need a warrant which "specifies"
property by reference to a described set of persons, only being
able to identify with precision an individual at a later moment.
I accept the agencies' interpretation is very arguable. I also see
in practical terms the national security requirement.
The critical thing however is that the submission and the warrant
must be set out in a way which allows the Secretary of State to
make the decision on necessity and proportionality.
Thus, I have made it clear:
•
A Secretary of State can only sign the warrant if they are
able property to assess whether it is necessary and
proportionate to authorise the activity.
•
The necessity and proportionality consideration must not
be delegated
•
Property warrants under the present legislation should be
as narrow as possible; and
•
Exceptional circumstances where time constraints would
put national security at risk will be more likely to justify
“thematic” warrants.
This has led to one of the agencies withdrawing a thematic
property warrant in order to better define the specified property.