III.
SUMMARY OF THE CURRENT LEGAL FRAMEWORK
A.
UK bulk interception under the s8(4) Regime
82.
Section 5(1) of RIPA empowers the Secretary of State to issue a warrant
“authorising…the interception…of the communications described in the
warrant”. Section 8 provides for two types of interception warrants: (1) a
“targeted” warrant under s8(1) and (2) an “untargeted” warrant under
s8(4). The s8(4) Regime applies where the Government seeks “the
interception of external communications in the course of their transmission
by means of a telecommunication system.” (s8(5)(a)). Section 20 of RIPA
defines an “external communication” as “a communication sent or received
outside the British Islands.” Section 5(6) provides that “conduct authorised
by an interception warrant shall…include…conduct for obtaining related
communications data.”
83.
The s8(4) Regime operates as follows. First, an application must be made
by one of the persons listed in s6(2), which includes the Director-General
of MI5, the Chief of MI6 and the Director of GCHQ. Second, the Secretary
of State shall not issue a warrant “unless he believes that (a) the warrant is
necessary on grounds falling within subsection (3); and (b) that the conduct
authorised by the warrant is proportionate to what is sought to be
achieved”. Section 5(3) provides that a warrant is considered “necessary” if
“it is necessary (a) in the interests of national security; (b) for the purpose of
preventing or detecting serious crime; [or] (c) for the purpose of
safeguarding the economic well-being of the United Kingdom.” Third, when
the Secretary of State issues a warrant, it must be accompanied by “a
certificate…certifying (i) the descriptions of intercepted material the
examination of which he considers necessary; and (ii) that he considers the
examination of material of those descriptions necessary as mentioned in
sections 5(3)(a), (b) or (c).” (s8(4)(b)).
84.
As stated by the Government in its Observations:
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