CHAPTER 6: POWERS AND SAFEGUARDS
(a)
Two people in the UK who email each other are engaging in internal
communication, even if they use an email service which is housed on a server
in the United States. The fact that the communication travels via a server
overseas does not make it external, but it may well be collected under a warrant
targeting external communications.53
(b)
A person in the UK who communicates with a search engine overseas is
communicating with a server overseas and engaging in an external
communication. Likewise a person who posts a public message such as a tweet
or Facebook status update, is sending an external communication unless all the
recipients of that message are within the British Isles.54
This was not clear prior to the publication of Mr Farr’s statement. Some have
considered those distinctions counter-intuitive: for example, many people might not
consider a Google search to be a communication at all, let alone an external
communication.
6.53.
Further potential confusion follows from the fact that internal communications are
collected under external warrants. RIPA s5(6) allows the collection of information that
is not specified in the warrant, if it is necessary in order to collect the information that
is specified in the warrant.55 As explained in the Charles Farr Statement, it is inevitable
that there is “by-catch” of internal communications because s8(4) bulk interception
takes place at the level of communications cables.56 It is generally accepted that the
collection of such material cannot be avoided.
6.54.
As the IPT noted, in a recent judgment concerning the s8(4) framework, in practical
terms it is s16 of RIPA that must do the “heavy lifting” when it comes to the distinction
between internal and external communications.57
6.55.
Section 16 sets out the extra safeguards in respect of material intercepted pursuant to
a s8(4) warrant. In order to be examined, material must fall within the Secretary of
State’s certificate and it must not be selected according to a factor that is “referable to
an individual who is known for the time being to be in the British Islands” and the
purpose of which is to identify his communications (s16(2)).
6.56.
However, ss16(3)-(5) provide for two exceptions to that position:
(a)
53
54
55
56
57
The external communications of a person known to be in the British Islands may
be selected for examination if the Secretary of State certifies that that is
necessary for the purposes of national security, the prevention or detection of
serious crime or protecting the economic wellbeing of the UK: s16(3). In
practice the Foreign Secretary approves one or more lists of such targets every
six months, though he can add names at any time. Most UK-based individuals
who are subjects of interest to the security and intelligence agencies or law
Interception Code, para 5.1; Charles Farr Statement, para 128.
Charles Farr Statement, paras 134-137.
The same provision also applies to internal warrants. “Collateral” material may be gathered where it is
technically necessary in order to carry out the s8(1) warrant.
Para 139.
Liberty IPT Case, judgment of 5 December 2014, para 101.
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