2013 Annual Report of the Interception of Communications Commissioner
6.6.4 There will almost always be two parties to a relevant communication. They may
perhaps each be properly targeted serious criminals. As often as not, only one of them
is, or perhaps neither if, for instance, the communications device is used by others as well
as the target. You cannot tell in advance which communications for your serious criminal
will be of intelligence interest and which may not. Those which are not may well be
theoretically intrusive. Even those which are of intelligence interest may be to an extent
intrusive.
6.6.5 It is important that my inspections, and those carried out by our inspectors, look
at a sufficient selection of individual applications to see that they are fully and properly
drafted and authorised in accordance with the statute and the Code of Practice. This
particularly applies to the proportionality sections. But my view, as I have said, is that
repetitious inspections of more and more individual applications is eventually less helpful
than looking at systems. As to which, there is a number of considerations as follows:
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individual analysts may have to listen to or look at on screen whatever comes
before them, be it relevant to an investigation or not. They are experienced
and trained to identify quickly and isolate items of legitimate intelligence
interest and to deal with them appropriately;
material which is of no intelligence interest is very quickly passed over, as often
as not without being read or listened to. In many systems it is immediately
marked for deletion. The deletion will then very soon happen, in many
systems automatically;
meanwhile the analyst, being only human and having a job to do, will have
forgotten (if he or she ever took it in) what the irrelevant communication
contained. I have sat next to analysts and heard or seen this happening;
any assessment of the degree of real intrusion should appreciate that this is
what inevitably happens on the ground. The active intrusion is insignificant;
the question never arises, but could in theory be asked, whether it might be
an offence under section 19 of RIPA 2000 for an analyst to disclose to anyone
the contents of an irrelevant communication marked for deletion;
deleted material necessarily cannot be searched at all, let alone intrusively;
conversely it is only stored material that is available for subsequent potential
intrusive investigations.
6.6.6 It is for these reasons that I undertook the investigation of the Retention, Storage
and Destruction of intercepted material and related communications data in all of the
interception agencies with statutory powers to apply for interception warrants under
RIPA 2000 Part I Chapter I (See paragraphs 3.48 to 3.57 of this report).
6.6.7 One significant apparent difference between the interception regime under Part I
Chapter I and the communications data regime under Part I Chapter II is that there is no
explicit statutory destruction provision in Part I Chapter II equivalent to that in section
15(3) for intercepted material. Section 15(3) requires the destruction of intercepted
material and related communications data as soon as there are no longer grounds for
retaining them as necessary for any of the authorised purposes. I nevertheless take
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