6.35.
Many of the alternative techniques suggested by Liberty in more general terms
would be far slower and less efficient than the use of bulk powers. Liberty
argues, for example, that bulk powers are not needed to discover new methods
of communication being used by a suspect. It contends that, instead, the SIAs
could interrogate the target’s bank records for evidence that the target has
purchased a new device which they might then be able to identify and track.
While such an approach might be possible, it would clearly take far longer than
would be required to achieve the same result by a search of data acquired by
bulk acquisition (or bulk interception). Further, as Liberty recognises, a search of
banking records may not lead the SIAs to identify a new phone.
6.36.
Liberty suggests targeted EI as a further alternative. Again, this may be a viable
alternative in some situations, but not when the SIAs cannot identify the phone or
computer being used by the target. EI of this sort may also be substantially more
intrusive than the use of bulk powers.
Negative incidents and outcomes
6.37.
There is no requirement under TA 1984 s94 to report an error when acquiring or
accessing bulk communications data. MI5 has an internal policy process for
reporting errors which cause communications data to be accessed wrongly. 230
such errors were reported to IOCCO in the 18 months from 1 January 2015, the
great majority of them relating to a failure on the part of MI5 to follow their own
handling arrangements and internal policies.
After investigation, IOCCO
concluded that the communications data accessed in those instances was
nonetheless accessed for legitimate purposes, and found no evidence that the
requirements of necessity and proportionality were not met.225
6.38.
GCHQ has a mechanism for reporting errors to the IOCC, but cannot easily
differentiate the source of the data as interception or s94 without compounding
any potential intrusion, e.g. by re-running the erroneous query. It reported no
errors to the IOCC that relate specifically to data obtained under a s94 direction.
The IOCC has recommended that there be a clear mandated process in place
for the reporting of errors.226
Internal documents
6.39.
225
226
The majority of documents relating to bulk acquisition were supplied by MI5. It
provided the Review team with copies of letters to the Home Secretary seeking
renewal of its bulk acquisition authorisation, and with a variety of internal
documents created for management purposes.
Report of the IOCC, July 2016, 8.79.
Ibid., 8.84-8.84.
100