CHAPTER 12: CIVIL SOCIETY
safeguards would need to be applied. Other suggestions for codifying surveillance
according to simple distinctions focused on the type of surveillance, such as separate
regimes for covert and overt surveillance, or for directed and intrusive powers.
However, most focused upon the need for an overarching and simple regime at least
in relation to interception and acquisition of communications data, which forms the
focus of the remainder of this section.
Remove outdated concepts
12.24. When RIPA was designed, the internet was a rapidly growing and increasingly
important means of communication. However, it has been consistently highlighted to
me that RIPA has been overtaken by developments in technology, such that in the
view of many it is no longer fit for purpose. In particular, the volume and quality of
information contained in and in relation to communications has increased
exponentially. The distinctions laid out in the regime are increasingly defunct,
particularly in light of powerful tools for composite analysis. Unsurprisingly, therefore,
many in civil society advocate their removal.
12.25. The first key distinction which many have suggested removing is that between internal
and external communications, which is discussed in Chapter 6. While the precise
interactions of the different subsections of s8 is opaque, s8(4) warrants (which I term
“bulk” warrants in Chapter 6), can only be granted for the interception of “external
communications”, defined in s20 as a communication “sent or received outside the
British Islands”, and accompanying conduct necessary to undertake to seek such
interception, under s5(6). This is a very wide power, by comparison to the power to
intercept the communications of a single person or connected to a single premises
(which I term “targeted” warrants in Chapter 6). Many or most of the submissions
received referred to those two powers as the power to issue “internal” and “external”
warrants. In practice, as set out in Chapter 6, s8(1) warrants may target both internal
and external communications and s8(4) warrants frequently intercept internal
communications (though they may not target them). The distinction between the two
categories of warrant is said to be either pointless or misleading, for the following key
reasons:
24
(a)
As a starting point, what is classified as an “external communication” is unclear,
as set out in detail in the submission of Graham Smith. Many are of the view
that the definition put forward by the Home Office in the Charles Farr Statement
is inconsistent and overbroad.24
(b)
The distinction is outdated in the context of internet communications that are
routed (and intercepted) globally.
(c)
It is particularly irrelevant in a situation when it is impossible, in practice, to
intercept external communications without intercepting internal ones as well
(RIPA ss8(5)(b) and 5(6)(a)). Many of the submissions felt that s16 did not do
enough to maintain that distinction.
See for example the submissions of Big Brother Watch and the All Party Parliamentary Group on Drones.
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