2013 Annual Report of the Interception of Communications Commissioner
8. Do British intelligence agencies receive from US agencies intercept
material about British citizens which could not lawfully be acquired by
intercept in the UK and vice versa and thereby circumvent domestic oversight
regimes?
6.8.1 No. I have investigated the facts relevant to the allegations that have been
published, as to the details of which I am unable to comment publicly. However, the
principles that I have applied in reaching this conclusion are as follows.
6.8.2 An intelligence agency in country A is entitled to share intelligence with an
intelligence agency in country B if:
(i) the intelligence is lawfully acquired in country A; and
(ii) it is lawful in country A for its intelligence agency to share the intelligence
with the intelligence agency in country B; and
(iii) it is lawful in country B for its intelligence agency to receive the intelligence;
and for good measure
(iv) it would have been lawful for the intelligence agency in country B to acquire
the intelligence in country B, if it had been available for lawful acquisition in
that country.
6.8.3 As to (i) and (ii) and generally, I have no expertise in US law and have not personally
investigated so much of it as might be relevant. I have however received appropriate
assurances in this respect.
6.8.4 As to (ii), if country A is the UK, I have had particular regard to section 15(2)
of RIPA 2000 which strictly limits the lawful dissemination of intercept material to the
minimum that is necessary for the authorised purposes.
6.8.5 As to (iii), I know of no principle that an intelligence agency is disentitled from
receiving intelligence information offered by a third party which a third party lawfully has,
provided that its receipt is within the established statutory function of the intelligence
agency, as to which see the Intelligence Services Act 1994. It happens all the time.
6.8.6 As to (iv), information lawfully obtained by interception abroad is not necessarily
available by interception to an interception agency here. In many cases it will not be
available. If it is to be lawfully provided from abroad, it is sometimes appropriate for the
interception agencies to apply explicitly by analogy the RIPA 2000 Part I principles of
necessity and proportionality to its receipt here even though RIPA 2000 Part I does not
strictly apply, because the interception did not take place in the UK by an UK agency. This
is responsibly done in a number of appropriate circumstances by various of the agencies,
and I am asked to review the consequent arrangements, although this may not be within
my statutory remit.
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