Report of the Interception of Communications Commissioner - March 2015
first time, issued formal inspection reports to the WGDs in 2014 and 16 recommendations
arose from the inspections of the 4 main WGDs.
6.67 Figure 3 shows that 82% of the recommendations made fell into 3 key categories:
Application Process, Section 15/16 Safeguards and, Issue / Implementation of Warrants.
Application Process
6.68 47% of the recommendations were made in relation to the application process.
The recommendations in this category can be broken into six distinct areas and some
examples of the recommendations are given below.
6.69 Necessity. In a number of instances we challenged whether the interception met
the statutory necessity grounds. A key part of the necessity test is to make the link between
the individual under investigation, the communications address to be intercepted, and
the serious crime or threat to national security. In a number of cases the link was not
made between the first two points explicitly. In a small number of instances the warrant
applications did not set out sufficiently what the specific interest / threat to national
security was. It was unclear in a small number of cases how the crime under investigation
met the ‘serious’ crime test set out in section 81(3), particularly where the interception
had not produced any intelligence to substantiate the seriousness of the criminality. In
a number of these cases there was other intelligence indicating that the individual was
in fact engaged in serious criminality. As a result we required this information to be
included in subsequent submissions, but directed that the interception agency should
consider whether the conduct was still proportionate when balancing the value of the
interception against the level of intrusion into the individual’s privacy.
6.70 Proportionality and collateral intrusion. I have already touched on
proportionality in the preceding paragraph and in the section where I discuss our
downstream examination and query based searches. Because we are often conducting
our audits while the interception warrants are still extant we are able to reassess
proportionality by examining some of the intercepted material and interviewing relevant
staff. In a number of the interception agencies we recommended that the applications
must outline what steps would be put in place to minimise collateral intrusion, particularly
where the communications addresses were likely to be used by individuals who were not
of intelligence interest. Any renewal submissions should contain a considered assessment
of the actual intrusion that has occurred (whether collateral or otherwise) and how
effective the steps to minimise that intrusion have been. In a number of instances the
renewals contained the same wording as the original submissions (i.e. they set out what
intrusion was expected) when of course by that stage it was known what actual intrusion
had resulted from the interception. We regarded this to be unsatisfactory.
6.71 Thematic warrants. Earlier in the report I made passing reference to so called
thematic warrants. The term ‘thematic’ is not defined in statute but it is the name applied
to section 8(1) warrants that are against more than one person. Section 81(1) specifies
that “person” includes any organisation and any association or combination of persons. A
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