link to the interests of national security: it is enough that the warrant be
necessary for the purpose of preventing or detecting serious crime, or (in
some cases) preventing or mitigating death, injury or damage to a person’s
physical or mental health. Nor is there any requirement that a targeted EI
warrant be foreign-focused.
(b) Bulk EI warrants (clause 162) are more tightly controlled, in the manner of
bulk interception warrants: they may be sought only by the SIAs; they must
be necessary in the interests of national security (whether on its own or in
conjunction with other grounds, including the prevention and detection of
serious crime);90 and a foreign focus is required. In the same way as for bulk
interception, a targeted examination warrant (clause 93(9)) is required to
carry out the selection for examination of the protected material of individuals
known to be within the UK or the private information of such individuals.
2.52.
Targeted EI warrants, used thematically, may be very broad in their scope: they
may relate for example to “equipment in a particular location”, “equipment in
more than one location, where the interference is for the purpose of a single
investigation or operation” and “equipment which is being, or may be, used for
the purposes of a particular activity or activities of a particular description”.91
2.53.
The Government has expressly acknowledged that targeted thematic EI
operations, like their bulk counterparts, can take place “at scale”, and that they
may cover a large geographic area or involve the collection of a large volume of
data.92 The Code of Practice specifies that “the activity should be focused on
specified targets as much as possible to ensure only so much product is
obtained and examined as is necessary and proportionate.”93 Yet the thematic
EI power is subject to fewer limitations. In particular, targeted thematic EI
operations:
(a) can be conducted by a wider range of authorities (including the police),
(b) need not be connected with national security, and
(c) need not be overseas-focused.
2.54.
90
91
92
93
I do not challenge the operational case for targeted thematic EI warrants,
including within the UK where they may be useful to MI5 e.g.:
Clause 164(1)(b).
Clause 95(1)(d)(e)(f); compare clause 17(2) (targeted thematic interception warrants).
Operational Case, 8.5; see further March 2016 draft Code of Practice, 4.17.
March 2016 draft Code of Practice, 5.3; cf. the discussion of thematic warrants by the IPT in
Privacy International v Secretary of State for Foreign and Commonwealth Affairs [2016]
UKIPTrib_14 85-CH (12 February 2016), paras 31-47.
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