(a) where EI targeted on one subject of interest may impact on others who use
the same device or are part of the same network;
(b) where covert entry is effected into a property, and it may be necessary and
proportionate to interfere with all the devices in the premises because it is not
immediately possible to identify which belong to the subject of interest;
(c) for the investigation of groups whose members are not in the same location
and whose communications may not be visible through interception: factors
such as speedy online radicalisation mean that MI5 may no longer be able to
rely on more traditional surveillance methods in such cases; or
(d) to investigate cyber-attacks on networks in the UK..
2.55.
I am mindful also of the ruling of the IPT that it is not necessary for an EI warrant
to be limited to a named or identified individual or list of individuals: “The property
should be so defined, whether by reference to persons or a group or category of
persons, that the extent of the reasonably foreseeable interference caused by
the authorisation” of the actions authorised by the warrant can be addressed.94
2.56.
But I have previously commented that the widely-drawn provision for targeted
thematic EI “effectively imports an alternative means of performing bulk EI, with
fewer safeguards”.95 To the Government’s answer that targeted thematic EI
warrants will only be used in cases where the proposed interferences with
privacy are adequately foreseeable, such that “the additional access controls
under the bulk EI warrantry regime are not required”,96 I responded that this
“may be argued to place excessive weight on the discretion of decision-makers”,
and suggested that it should be possible to “reduce the scope of [targeted
thematic warrants] so as to permit only such warrants as could safely be issued
without the extra safeguards associated with bulk”.
2.57.
94
95
96
That comment relates however to the desirable scope of targeted warrants under
Part 5 of the Bill, and not to the powers under review. For that reason I do not
pursue it in this report, save to note that it will be particularly important for those
authorising and approving warrants to ensure that the thematic powers are kept
within strict bounds, and not used as a means of avoiding or circumventing the
restrictions that have quite properly been placed on the authorisation of bulk
warrants. I hope and expect that the IPC will keep a particularly close eye on
this.
Privacy International v Secretary of State for Foreign and Commonwealth Affairs and GCHQ
[2016] UKIPTrib 14_85-CH, para 38.
Written evidence of 24 March 2016 to Parliament’s Public Bill Committee, para 5(a):
http://www.publications.parliament.uk/pa/cm201516/cmpublic/investigatorypowers/Memo/IPB46
.htm.
Ibid., 8.6; March 2016 draft Code of Practice, 5.5.
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