2013 Annual Report of the Interception of Communications Commissioner
communications without a risk that some internal communications may also be initially
intercepted. This was contemplated and legitimised by section 5(6)(a) of RIPA 2000 which
embraces
“all such conduct (including the interception of communications not identified
by the warrant) as it is necessary to undertake in order to do what is expressly
authorised or required by the warrant”.
6.5.53 Thus the unintended but unavoidable initial interception of some internal
communications under a section 8(4) warrant is lawful. Reference to Hansard House of
Lords Debates for 12th July 2000 shows that this was well appreciated in Parliament when
the bill which became RIPA 2000 was going through parliament14.
6.5.54 However, the extent to which this material, lawfully intercepted, may be lawfully
examined is strictly limited by the safeguards in section 16 – see paragraphs 6.5.33 6.5.37
of this report. And in any event my investigations indicate that the volume of internal
communications lawfully intercepted is likely to be an extremely small percentage of the
totality of internal communications and of the total available to an interception agency
under a section 8(4) warrant.
6.5.55 Summary. The upshot of all this is that I do not consider that RIPA 2000 Part
I Chapter I, and in particular the section 8(4) process has become unfit for purpose in
the developing internet age. There are certainly problems for anyone unfamiliar with
the statutory structure in getting a clear understanding of what the statute permits,
and conversely what it forbids. There are sensitivity problems which mean that the
public cannot (and should not) find out the detail of interception operations which the
interception agencies may undertake. But these problems are not new or recent. They
have only been highlighted by recent events.
6.5.56 It is ultimately a matter of policy whether the interception agencies, duly authorised
under RIPA 2000 Part I Chapter I and subject to its safeguards, should continue to be
enabled to intercept external communications, so far as they are lawfully and technically
able, in order to assist their functions of protecting the nation and its citizens from
terrorist attack, cyber attack, serious crime and so forth. If the policy answer to that
question is yes (which I personally should have thought was obvious), the questions then
are whether:
14 Lord Bassam of Brighton, responding to an opposition amendment (subsequently withdrawn) essentially
probing whether clause 8(4) would permit “Orwellian trawling”, said at column 323:
“It is just not possible to ensure that only external communications are intercepted. That is because modern
communications are often routed in ways that are not all intuitively obvious. Noble Lords who have
contributed to the debate understand that an internal communication--say, a message from London to
Birmingham--may be handled on its journey by Internet service providers in, perhaps, two different countries
outside the United Kingdom. We understand that. The communication might therefore be found on a link
between those two foreign countries. Such a link should clearly be treated as external, yet it would contain
at least this one internal communication. There is no way of filtering that out without intercepting the whole
link, including the internal communication.”
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