British Islands” and also has as its purpose “the identification of material
contained in communications sent by or intended for him”, in practice,
many selectors might still include the communications of such individuals.
The Independent Reviewer suggested that “simple selectors such as email
addresses or telephone numbers” might filter out UK-based individuals but
noted that “internal communication may be read…if they are selected by
reference to another factor”.102 In addition, s16(2) only applies where the
inspection “has as its purpose or one of its purposes the identification of
material contained in communications sent by…or intended for” a UKbased individual. This limitation does not restrict the UK Intelligence
Services from filtering, storing and analysing material relating to a person
known to be in the UK so long as they are for the purpose of identifying
material intended for a friend, relative or other associate of that
individual.
175.
Fourthly, the s16(2) “safeguards” may be removed under s16(3). The
Government contends that “[t]he Secretary of State’s power to modify a
certificate under s. 16(3)…is in substance as tightly constrained as his
power to issue a s. 8(1) warrant” (Observations, §4.44). However, the ISC
Report disagrees. The ISC found that the information provided by GCHQ
to the Secretary of State “do[es] not cover all the categories of information
that an 8(1) application would cover (for example, any expected collateral
intrusion into the privacy of others, or why the intelligence sought cannot
be obtained by less intrusive means)”.103 In addition, “16(3) modifications
may contain lists of individuals – i.e. they do not always relate to a specific
individual in the same way as 8(1) warrants”.104 The ISC concluded
accordingly that “the 16(3) modification system…does not provide the same
rigour as that provided by an 8(1) warrant.”105
A Question of Trust, para 6.57(c).
ISC Report, para 114.
104 ISC Report, para 114.
105 ISC Report, para Q.
102
103
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