2013 Annual Report of the Interception of Communications Commissioner
6.5.39 How section 8(4) is in fact operated. I have examined in detail the way in which
the interception agencies in fact operate under section 8(4) warrants. This is sensitive,
but I can give some general indications.
6.5.40 Any significant volume of digital data is literally useless unless its volume is first
reduced by filtering. What is filtered out at this stage is immediately discarded and
ceases to be available. What remains after filtering (if anything) will be material which is
strongly likely to include individual communications which may properly and lawfully be
examined under the section 8(4) process. Examination is then effected by search criteria
constructed to comply with the section 8(4) process.
6.5.41 It is a matter of judgment whether a process of this kind has any significant risk
of undue invasion of privacy. My own judgment is that it does not, for reasons which I
will explain.
6.5.42 If I were to conclude that the section 8(4) procedure is in fact operated unlawfully
so as to give rise to improper invasion of privacy, it would unquestionably be my duty to
report it to the Prime Minister under section 58(2) of RIPA 2000. I do not so conclude.
There are some instances, outlined in the paragraph 3.64 of this report, where the section
16 safeguards have not been fully complied with. These instances do not materially
detract from my general conclusion.
6.5.43 The reasons for my judgment that the section 8(4) process does not have a
significant risk of undue invasion of privacy are as follows:
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it cannot operate lawfully other than for a statutory purpose. Indiscriminate
trawling is not a statutory purpose;
it cannot operate lawfully other than pursuant to a warrant and one or more
certificates issued by the Secretary of State;
the Secretaries of State who sign warrants and give certificates are well familiar
with the process; well able to judge by means of the written applications
whether to grant or refuse the necessary permissions; and well supported
by experienced senior officials who are independent from the interception
agencies making the applications;
if a warrant is up for renewal, the Secretary of State is informed in writing of
the intelligence use the interception warrant has produced in the preceding
period. Certificates are regularly reviewed and subject to modification by the
Secretary of State;
examination of intercepted material has to be in accordance with the certificate
such that indiscriminate trawling is unlawful;
with the exception of individuals under section 16(3) (or for very short periods
under section 16(5)), examination of intercepted material may not be referable
to an individual who is in the British Islands;
examination of material under section 16(3) referable to the communications