Report of the Interception of Communications Commissioner - March 2015
someone in the British Islands to be selected for examination. This is, however, qualified
to a limited extent by sections 16(3) and 16(5).
6.31 Section 16(3) permits the examination of material acquired under a section 8(4)
warrant relating to the communications of a person within the British Islands if the
Secretary of State has certified that its examination is necessary for a statutory purpose
in relation to a specific period of not more than 6 months for national security or 3
months for serious crime or economic well-being. Since this certification has to relate to
an individual, it is broadly equivalent to a section 8(1) warrant.
6.32 Section 16(4) and (5) have the effect that material acquired under a section 8(4)
warrant for a person who is within the British Islands may be examined for a very short
period upon the written authorisation of a Senior Official where the person was believed
to be abroad but it has just been discovered that he or she has in fact entered the British
Islands. This will enable a section 8(1) warrant or section 16(3) certification for that person
to be duly applied for without losing what could be essential intelligence.
6.33
What this all boils down to is that:
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a section 8(4) warrant permits the interception of generally described (but not
indiscriminate) external communications;
this may only be lawfully examined if it is within a description certified by the
Secretary of State as necessary for a statutory purpose;
the selection for examination may not be made on the basis of factors referable
to the communications of an individual who is known to be for the time being
in the British Islands unless he or she is the subject of an individual authority
issued in accordance with section 16(3) or 16(5);
the section 8(4) structure does not permit random trawling of communications.
This would be unlawful. It only permits a search for communications the
examination of which has been certified as necessary for a statutory purpose.
6.34 Selection of section 8(4) material. In my 2013 Annual Report I outlined that
my clear independent judgement was that the interception agencies were not operating
the selection procedures unlawfully or to the outer limits of legality, so as to produce
disproportionate invasion or potential invasion of people’s privacy subject to three
caveats. I made the point that only the third caveat should be seen (subject to my further
inquiry) as suggesting the possibility of some structural or other reconsideration.
6.35
The three caveats were as follows:
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my detailed investigation of the Retention, Storage and Destruction of
intercepted material and related communications data (See paragraphs 3.48
to 3.57 of my 2013 Annual Report) 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
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