Report of the Interception of Communications Commissioner - March 2015
communications address level as well as at the person level, particularly where there
might be different collateral intrusion considerations. The remaining recommendations
related to computerised safeguards, audits and authenticating reviews which have already
been discussed earlier in this report.
6.77 Retention, Storage and Destruction. I have already provided significant detail on
the nature of these recommendations in a preceding section of the report. In brief, specific
recommendations were made for the interception agencies to review or shorten their
retention periods and/or destroy intercepted material and/or related communications
data where there was no persuasive justification provided for its continued retention.
Issue / Implementation
6.78 12% of the recommendations were made in relation to the issue or implementation
of interception warrants. These included recommendations to improve the audit trail for
those warrants issued orally under the direction of a Secretary of State, to reduce the
pressure on interception agencies to renew warrants excessively early by introducing
additional Secretary of State signing slots during recess periods, and to improve the
timescales within which instruments, modifications and cancellations are served on CSPs.
Summary of Recommendations & Observations
6.79 In 2014 my office made a number of recommendations in relation to the interception
agencies’ policies on legal privilege or otherwise confidential material. Chapter 3 of the
interception code of practice contains guidance on this area. Furthermore I note the
recent declaration by the IPT (following a concession by the Government) in relation to
Belhadj & Others vs Security Service & Others, that since January 2010 the regime for
the interception / obtaining, analysis, use, disclosure and destruction of legally privileged
material has contravened Article 8 ECHR and was accordingly unlawful. The Respondents
are now working with my office to review their policies and procedures to ensure that
the safeguards are made sufficiently public and are compatible with ECHR. Furthermore
at the time of drafting this report, a revised draft of the interception of communications
code of practice is out for public consultation28 and this sets out enhanced safeguards
and provides more detail on the protections that must apply to privileged material.
There is still the outstanding matter regarding whether the Claimants legally privileged
communications have in fact been intercepted / obtained, analysed, used, disclosed or
retained.
6.80 It will not be possible to judge progress against all of the 2014 recommendations
until after the first round of the 2015 inspections. However, out of the 36 recommendations
that were made in the first round of 2014 inspections, 30 had been fully achieved by the
second round. The remaining 6 were accepted in full, but had not been fully achieved by
the second round.
28 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/401866/Draft_
Interception_of_Communications_Code_of_Practice.pdf
www.iocco-uk.info
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