(1)
The note operates on the basis of applying RIPA by analogy. The
receipt of intercepted material ought to be governed by legislation
that is binding, not by a voluntary and discretionary practice of
applying other legislation by analogy and in secret.
(2)
The note is obscurely drafted. It speaks of the UK Intelligence
Services making a “request” for “intercepted communications (and
associated communications data)” or circumstances where they
“receive intercepted communications content or communications
data.” It is unclear, however, whether “request” or “receipt” cover all
the scenarios where the UK Intelligence Services may access
material intercepted by foreign intelligence agencies, such as to raw
initial intercept material that they may then extract, filter, store
and analyse or to databases of intercept material that has already
been extracted, filtered, stored and/or analysed by the foreign
intelligence agency.
(3)
In addition, the concepts of “analysed” and “unanalysed” are not
defined or explained, and do not derive from statute.
(4)
The arrangements appear to provide no protection at all for
communications data.
249.
The inadequacy of the previous arrangements is made clear by the
revision of the Code of Practice in January 2016. The publication of the
revised Code confirms that there was no good national security reason for
keeping information now in the Code secret. As in Liberty, the publication
of the revised Code showed that the previous secrecy was unnecessary.
250.
Yet the revised Code is equally inadequate because it applies the RIPA
regime to intercepted data received from abroad. Those safeguards are
inadequate for the reasons set out above (see 157-183).
97