2013 Annual Report of the Interception of Communications Commissioner
the provisional view in principle under human rights jurisprudence that communications
data should not be held available for any longer period than it is properly required for an
authorised statutory purpose.
6.6.8 There have been rumbling publicly expressed undertones that the interception
agencies may be operating the section 8(4) interception procedures unlawfully or to the
outer limits of legality, so as to produce disproportionate invasion or potential invasion
of people’s privacy. My clear independent judgment is that this is simply not so, subject
to three caveats. Only the third of these should be seen (subject to my further inquiry) as
suggesting the possibility of some structural or other reconsideration.
The three caveats are as follows:
(1) my detailed investigation of the Retention, Storage and Destruction of
intercepted material and related communications data (See paragraphs
3.48 to 3.57) has unearthed some instances where I conclude further work
needs to be done for me to be fully satisfied that some retention periods
are not unduly long. This is a general statement referable to several of the
interception agencies not specifically directed at the operation of section 8(4)
warrants. The proper length of a retention period under section 15(3) – “as
soon as there are no longer grounds for retaining it as necessary for any of
the authorised purposes” – is not always clear cut and may be amenable to
differing judgments.
(2) the Errors Section of this report has instances where interception has been
unintentionally undertaken in error. Every error is regrettable and some of them
constitute unintentional unlawfulness. But I consider that the interception
errors may properly be seen as largely isolated and fringe problems which, so
far as I am aware, have not resulted in any material actual invasion of privacy.
[The same is not entirely true of a small handful of communications data
errors which are noted in paragraphs 4.51 to 4.53 of this report].
(3) I need to undertake further detailed investigation into the actual application
of individual selection criteria from stored selected material initially derived
from section 8(4) interception. I have had this fully explained and then
demonstrated to me. But I am currently short of sufficient detailed material
necessary to make a full structural analysis and assessment of this internal
process. Time has not permitted me to undertake this inquiry before writing
this report.
6.6.9
My present provisional approach to this last point is as follows:
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individual interception under a section 8(1) warrant is appropriately authorised
by a Secretary of State’s judgment upon properly structured material;
the individual acquisition of communications data under RIPA 2000 Part
I Chapter II is appropriately authorised by a largely independent DP upon
properly structured material. The process is internal to the public authority
acquiring the data (save for local authorities who must go to a relevant judicial