Report of the Interception of Communications Commissioner - March 2015
in the second series of inspections in 201326 and these changes were applied to all of the
2014 inspections. This is also in part due to the fact that some of the inspections this year
were undertaken by an inspection team of three rather than two.
6.54 Audits and query based searches. My office has developed the interception
audits over the last two years and they are now at a significantly more mature level.
We have unfettered access to the application and authorisation systems in place within
a number of the interception agencies and we examine the warrant documentation
electronically rather than on paper. Where the interception agency also uses that system
to evaluate the intercepted material (and related communications data) and produce
intelligence reports we are able to conduct query based searches against the material
and reports.
6.55 These searches give better insight into how the material has been used, enable
specific areas to be tested for compliance, and allow trends and patterns to be identified
from the extraction of information from large volumes of applications. Furthermore it
enables us to examine within the operational environment the Article 8 interference
actually being undertaken. In a scientific sense, we test the operational hypothesis set
down in the initial application that was authorised. These are all important components
when formally reviewing and reassessing the necessity and proportionality of the
conduct authorised and compliance with the legislation and it is crucial to examine those
arrangements.
6.56 This is because when an application for an interception warrant is submitted the
proportionality and collateral intrusion considerations in particular are based at a certain
point in time and, importantly, prior to any interference being undertaken. In our view, in
practice, an additional and appropriate test as to whether something is, was or continues
to be proportionate to the Article 8 interference undertaken can only be obtained by
scrutinising the operational conduct carried out or, put another way, the downstream use
of the material acquired, for example by examining:
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how the material has been used / analysed;
whether the material was used for the stated or intended purpose;
what actual interference or intrusion resulted and whether it was proportionate
to the aim set out in the original authorisation;
whether the conduct became disproportionate to what was foreseen at the
point of authorisation and, importantly, why the operational team did not
initiate the withdrawal of the authority;
the retention, storage and destruction arrangements for material acquired;
and
whether any errors resulted from the interference or intrusion.
6.57 For example, my office might conduct a query based search to check that
the intercepted material has been examined in a timely fashion, or to scrutinise the
26 See Paragraph 3.32 of my 2013 Annual Report
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