Report of the Interception of Communications Commissioner - March 2015
number of the interception agencies apply for ‘thematic’ warrants against clearly defined
organisations or groupings of individuals where the case for necessity and proportionality
can be met. For example, such a warrant might be appropriate in a fast moving and short
term operation such as a kidnap or threat to life case or, in cases where there is reason
to believe that a communications address is being used by a number of individuals
belonging to an identifiable group.
6.72 On such warrants the description of the persons to be intercepted is broader and
the particularities are then added by way of modifications. The Secretaries of State must
be satisfied at the time they consider such warrants that the necessity and proportionality
case is consistent and that the conduct is sufficiently foreseeable. There are examples
where Secretaries of State have challenged thematic warrants and required individual
warrants to be submitted, usually in cases where the individuals were all clearly identified.
In a number of cases thematic warrants are also subject to more regular reviews at the
request of the Secretary of State.
6.73 I considered the question of whether a so-called ‘thematic’ warrant could in
theory comply with the law. I reached the conclusion that they could so long as they
sufficiently name or describe the combination or association of persons. In a number
of cases we have questioned however the strength of the association or combination of
persons, or had concerns as to how each individual conformed to the description on the
warrant instrument. We also raised concerns in a small number of cases that the specific
proportionality considerations and collateral intrusion issues were not set out sufficiently
for each individual. These concerns led to one of the interception agencies reviewing all
of its thematic warrants. We also identified discrepancies in how the various interception
agencies were using thematic warrants and recommended that a policy should be drafted
and agreed by all interception agencies and WGDs setting out the key principles and
circumstances under which it might be appropriate to use such warrants. This will result
in increased consistency and compliance.
6.74 Thematic warrants are, at the moment, the exception rather than the rule. In fact
a number of the interception agencies have yet to seek a thematic warrant. A case could
be made however, that it would be appropriate to use thematic warrants more widely
against, for example, a well-defined criminal or terrorist group working for a common
purpose.
Section 15/16 Safeguards
6.75 23% of the recommendations were made in relation to the section 15/16
safeguards. The recommendations in this category can be broken into four distinct areas
and some examples of the recommendations in the two main categories are given below.
6.76 Selection. My office made a recommendation relating to the content of the
section 16(3) and (5) authorisations to ensure that it was always explicit when it became
known that the individual was in the British Islands. Another recommendation was
made to ensure that the justifications for selection were considered at the individual
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