CHAPTER 6: POWERS AND SAFEGUARDS
6.25.
ISA 1994 s5 gives the Secretary of State the power to issue warrants authorising MI5,
MI6 and GCHQ to interfere with property in quite general terms. The interference must
be proportionate to its objective and the material obtained must be used in carrying
out those agencies’ functions.26 CNE was avowed for the first time by the Government,
in February 2015, by the publication of the Draft Equipment Interference Code.27 This
makes clear that Equipment may include, but is not limited to, “computers, servers,
routers, laptops, mobile phones and other devices.”28 It supplements the existing
Covert Surveillance and Property Interference Code.
6.26.
MI6 and GCHQ may both obtain authorisation, pursuant to ISA 1994 s5, to carry out
equipment interference, such as hacking, in pursuit of their statutory functions, except
where the property is in the British Islands and the purpose is the prevention or
detection of serious crime. MI5 may also obtain s5 warrants in pursuit of its statutory
functions, although where the function is to act in support of law enforcement and the
property is in the British Islands, the warrant may only be authorised in order to secure
the prevention or detection of what amounts to a serious crime.29 MI5 may further
undertake activity under ISA 1994 s5 in support of MI6 or GCHQ.
6.27.
ISA 1994 s7 (which has been referred to as the “James Bond clause”)30 provides a
power for the Foreign Secretary to authorise GCHQ or MI6 to carry out acts outside
the British Islands that might otherwise be criminal offences or give rise to civil liability.
GCHQ had five s7 class-based authorisations in 2014, removing liability for activities
including those associated with certain types of intelligence gathering and interference
with computers, mobile phones and other types of electronic equipment.31 MI6 had
eight class-based authorisations, removing liability for activities such as the
identification and use of CHIS, directed surveillance and interference with and receipt
of property and documents, and may seek further ministerial authorisations in respect
of specific operations.32
6.28.
The Draft Equipment Interference Code requires that an application should set out:
26
27
28
29
30
31
32
(a)
the identity or identities, where known, of those who possess or use the
equipment;
(b)
sufficient information to identify the equipment;
ISA 1994 s5. The requirement that the Secretary of State consider the interference is proportionate
and necessary was added by RIPA. MI6’s functions include obtaining and providing information
relating to the actions and intentions of persons outside the British Islands and to perform other tasks
relating to the actions or intentions of such persons (ISA 1994, s1(1)). MI5’s functions are to protect
national security against espionage terrorism and sabotage from the actions of agents of foreign
powers and also prevention of serious crime in the UK (Security Service Act 1989 [SSA 1989], s1).
GCHQ’s functions are first to monitor or interfere with transmissions and to provide information about
them and second to provide advice and assistance about languages and information security to the
armed forces, the Government and other authorised organisations (ISA 1994, s3).
The Home Office have already published a Covert Surveillance and Property Interference Code of
Practice [Covert Surveillance and Property Interference Code].
fn 6, p. 5.
ISA 1994 s5(3B).
ISC Privacy and Security Report, para 236.
Ibid., para 234.
Ibid., para 233.
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