CHAPTER 6: POWERS AND SAFEGUARDS
enforcement are however targets of s8(1) warrants issued by the relevant
Secretary of State, which will authorise the interception of all their
communications, where necessary with the assistance of GCHQ.
(b)
6.57.
If the person to whom the warrant is addressed concludes that there has been
a relevant change of circumstances, in essence that the individual has now
entered the British Islands, the material may still be selected for a brief period
of time. The short window of five days that is allowed for the selection of
material under RIPA s16 provides the opportunity to obtain a certificate from the
Secretary of State that the examination of that material is necessary (ss16(4)(6)) or to obtain a s8(1) warrant to intercept all of their communications.
The practical consequence of this is that:
(a)
Some internal communications are unavoidably intercepted under warrants for
the interception of external communications.
(b)
Material intercepted under external warrants is subjected to computer-based
selection (for example by reference to simple selectors such as email addresses
or telephone numbers, or using complex selectors based on a combination of
factors) in order to find items of intelligence interest. Items may not be selected
for reading by reference to an individual known to be in the British Islands, where
the purpose is the identification of that person’s communications.
(c)
However internal communications may be read if:
(d)
they are selected to be examined by reference to another factor
(although GCHQ inform me that they may not use this route in order to
deliberately seek access to internal communications and that it is
unlikely to occur in practice); or
the Secretary of State certifies that it is necessary to select and examine
a person’s communications (pursuant to s16(3)) and those
communications include some internal communications.58
Where the original intention is to obtain internal communications, a s8(1)
warrant will be sought.
6.58.
Furthermore, there are no restrictions on the examination of communications data
relating to internal communications that are incidentally collected under a s8(4)
warrant. That material may be examined, if it can be shown to be necessary and
proportionate to the purposes of the examining authority.
6.59.
The proportionality of the mechanisms employed pursuant to s8(4), and the sufficiency
of the safeguards set out in s16, are currently the subject of a challenge before the
58
As noted by the ISC Privacy and Security Report, paras 113-115, GCHQ does not always apply for
s8(1) warrants in relation to the communications of individuals in the UK, although GCHQ considers
that the process for modifying s16 certificates provides equivalent safeguards. The ISC noted that the
modification process does not require consideration of all of the elements that are necessary before a
s8(1) warrant is sought.
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