By contrast with Example 1, no identifiers which relate solely to the targeted
individuals are known from the outset. The only identifier known at the outset is the
software package used by terrorists but also by some other, innocent individuals. The
IP address linked to the extremist website and the other refining factors were only
uncovered during the course of the operation through analysis of the original ‘pot’ of
data.
Consequently, the Secretary of State cannot know or fully assess all of the
interferences with privacy that will occur (both in relation to the cell members and
innocent individuals whose devices will be affected) from the start to the end of the
operation. The Secretary of State knows:
•
the objective and the scale of the operation and what will be done in order to
collect the initial ‘pot’ of data;
•
that the information to be retrieved from the ‘pot’ of data will likely include the
data of terrorists, that will lead to the cell, but also some data belonging to
innocent individuals (given the software package is not exclusively used by
terrorists); and
•
that further analytic work will be required leading to more refined searches on
the initial ‘pot’ in order finally to discover and obtain the communications of
the terrorist cell.
But at the point of issuing the warrant, the Secretary of State is not in a position to
assess the necessity and proportionality of subsequent searches of the ‘pot’. To
ensure that all of those searches are carried out in accordance with privacy
considerations, additional examination safeguards need to be in place.
As the cell members can only be identified following considerable target
discovery effort, a bulk EI warrant is suitable.
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