CHAPTER 7: PRACTICE
made available to the intercepting agencies.
providers.
It interfaces directly with service
7.29.
GCHQ is responsible for developing NTAC’s bulk interception and CNE capabilities.
7.30.
Implementing a s8(1) warrant generally relies on the cooperation of service providers,
acting typically in response to a direction from the Government under RIPA s12. A
copy of the intercepted communication is passed by the companies to the intercepting
agencies who examine it using their own staff and facilities. External communications
may be obtained under a s8(4) warrant either directly by GCHQ, using its own
capabilities, or through a service provider. Part of NTAC's role is to ensure that the
needs of intercepting agencies can be addressed using the best available techniques,
avoiding duplication of effort amongst the intercepting agencies whilst able to protect
sensitive techniques that might be compromised by over-use.
7.31.
In contrast to the position where communications data is concerned, there has been
little discussion in recent years of the impact of technological developments on the
feasibility of interception once it has been approved under warrant. Partly this reflects
the sensitivity of the techniques used and the concern not to expose any weaknesses
in them. Partly it reflects the continuing ability of the intercepting agencies, working
with the service providers, to maintain access to communications channels.
Nevertheless, the intercepting agencies acknowledge that the growth in the use of
powerful encryption techniques, and their widespread availability from service
providers or to individual users, undermines the historically high levels of probability
that targets of interception identified in a warrant or Secretary of State’s certificate will
be able to be fully examined. A further powerful inhibitor on the ability to secure
intercepted material is the increasing tendency to communicate using internet-based
OTT applications, which are operated from overseas by companies which store data
outside the UK. This is discussed at 6.95-6.99 above and 11.10-11.25 below.
Secretaries of State and WGDs
7.32.
There are 18 Secretaries of State, all of whom may in theory issue warrants. In
practice, other than in urgent cases when the usual Minister is unavailable, the Home
Secretary deals with all warrants in Great Britain for MI5, the NCA, MPS and HMRC
and any national security warrants from Police Scotland; the Secretary of State for
Northern Ireland deals with applications in Northern Ireland and the Foreign Secretary
deals with GCHQ and MI6 warrants. The Secretary of State for Defence deals with
the small number of MoD warrants. These Secretaries of State also cover for each
other’s absence. The Cabinet Secretary for Justice in the Scottish Government deals
with Police Scotland’s applications to intercept in serious crime cases.
7.33.
The Home Secretary has said that warrantry decisions occupy “more of my time…than
anything else”.25 She dealt with the great majority of over 2,700 RIPA warrants that
were handled by the Home Office in 2014, personally authorising 2,345 interception
and property warrants and renewals during that year.
25
Mansion House speech, 24 June 2014.
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