CHAPTER 7: PRACTICE
internal process with the input of a SPoC and final sign-off by a DP.36 Following the
Digital Rights Ireland judgment the requirement that the DP be independent of the
investigation has been emphasised. It can be waived in cases, which must be
explained to the IOCC, where the authority has only a small criminal investigation
department or where there are ongoing operations or investigations immediately
impacting on national security and an independent DP cannot be called upon.37
The use and impact of communications data
7.43.
Communications data have become a basic tool in the investigator’s armoury. There
were 517,236 RIPA notices and authorisations, excluding urgent oral authorisations,
in 2014, of which some 89% were issued by law enforcement and 10% by the
Agencies.38 But there are no statistics which set out the number of investigations in
which it is used, or the number of people whose data were examined.39
Communications data and intelligence
7.44.
MI5 explained to me that communications data allows it to be able to build a picture
of a subject of interest’s activities, and is extremely important in providing leads. It
has had a significant role in every counter-terrorist operation MI5 has run in the past
decade.40 One of the advantages they identified was that analysis of communications
data is a relatively speedy technique that allows targets to be identified for further work
but may also help to determine that someone is of no further intelligence interest. For
example, it may show that someone’s contacts with a suspect are entirely innocent.
7.45.
GCHQ makes extensive use of communications data to develop its intelligence
picture, though much of its data is obtained as a by-product of its bulk interception of
content: see 7.22 above.
7.46.
The ISC summarised the manner in which the Agencies make use of communications
data thus:
“CD [communications data] is central to most Agency investigations. It is used
to develop intelligence leads, to help focus on individuals who may pose a
threat to the UK, to ensure that interception is properly targeted ... and to
illuminate networks and associations relatively quickly. It can be particularly
useful in the early stages, when the Agencies have to be able to determine
whether those associating with the target are connected to the plot (and
therefore require further investigation) or are innocent bystanders. GCHQ have
established that they can analyse CD to find patterns in it that reflect particular
online behaviours that are associated with activities such as attack planning,
and to establish links.”41
36
37
38
39
40
41
Ibid., section 3.
Ibid., para 3.13.
IOCC Report, March 2015, Annex B.
Ibid., paras 7.29-31 set out the difficulties in establishing this information.
Evidence to the Review dated 1 October 2014.
ISC Privacy and Security Report, para 130.
134