3.9.
In relation to bulk interception, the IOCC’s statutory role is to audit compliance
against existing legislation and to investigate any contraventions of the
legislation (whether detected during IOCCO inspections or self-reported by the
SIAs). When reviewing interception warrants, including warrants for interception
in bulk, IOCCO scrutinises the SIAs’ justifications for necessity and
proportionality on a case-by-case basis, both in the interception warrant
application itself and then at the second stage of the process where the analysts
submit justifications to select and examine material from the bulk. It interviews
operational staff about those justifications, about how the material acquired has
been used and whether it achieved the objectives set out in the
application. Cancellation of warrants may be recommended if they are
excessively intrusive or if they do not produce sufficient information to be
proportionate. IOCCO also examine the safeguards in place to protect privacy
and the arrangements for the retention, storage and destruction of any material
obtained.122
3.10.
The IOCC has also expressed more general views on the utility, necessity and
intrusiveness of bulk interception.123 In April 2014, no doubt prompted by the
Snowden allegations, the IOCC raised and answered a number of “Questions of
Concern” relating to the current bulk interception power in RIPA 2000 s8(4):
(a) On the question of whether “it is in general necessary and proportionate to
warrant the initial interception of this kind and volume of material”, the IOCC
indicated that it would be, subject to satisfactory safeguards including proper
arrangements for its treatment, lawful examination and retention.124
(b) On the question of whether “there are other reasonable less intrusive means
of obtaining the information which it is considered necessary to obtain”, the
IOCC stated:
“I am satisfied that at present there are no other reasonable means
that would enable the interception agencies to have access to external
communications which the Secretary of State judges it is necessary
for them to obtain for a statutory purpose under the section 8(4)
procedure. This is a sensitive matter of considerable technical
complexity which I have investigated in detail.”125
122
123
124
125
See, e.g., IOCCO’s March 2015 report at 6.46-6.49 (inspection regime), 6.60-6.65 (retention,
storage & destruction), 6.66-6.81 (inspection findings) and 6.82-6.97 (contraventions / errors).
Supplementing strong views previously expressed by both Commissioners as to the utility of
interception in general (not limited to bulk): 2011 Annual Report of the IsComm, p. 23
(“Operational successes”); 2011 Annual Report of the IOCC, chapter 5 (“Successes”); 2012
Annual Report of the IOCC, July 2013, Foreword.
2013 Annual Report of the IOCC, April 2014, 5.5.50.
Ibid., 6.5.51.
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