CHAPTER 14: EXPLANATIONS
Bulk warrants
14.72. Only the chiefs of the security and intelligence agencies should remain eligible to
apply for bulk warrants (of which there are currently 20), and only with the approval of
the Secretary of State (Recommendation 40). The issue of a bulk warrant should be
for the Judicial Commissioner, but with the same limitation as regards the national
security case as was recommended in relation to specific interception warrants:
Recommendations 46-47 and 14.64-14.66 above.
14.73. Recommendation 42b provides for communications data to be obtained in bulk
without the accompanying content. It gives effect to the suggestion at 10.40(c) above,
and could accommodate a range of different uses. To give an example of a
circumstance where it might apply, bulk communications data is essential in
identifying and illuminating particular types of activity on a network for the purposes
of cyber-defence, where GCHQ is seeking to identify malicious activity on particular
networks.
This activity neither targets nor meaningfully intrudes into the
communications of individuals. But more generally, such a warrant is self-evidently
less intrusive than the current s8(4) warrant: hence the requirement
(Recommendation 42) that a bulk content warrant should never be applied for,
approved or authorised in circumstance where a bulk communications data warrant
would suffice.
14.74. This additional power for the security and intelligence agencies to obtain
communications data in bulk by warrant is not intended to replace the existing RIPA
powers for law enforcement agencies to obtain large volumes of data directly from
CSPs for cell-site analysis when it is necessary and proportionate to do so, for
example when searching for or tracking the movements of a suspect, see 9.66.
14.75. Bulk warrants should remain available only in pursuit of the existing statutory purposes
(Recommendation 43). But in lieu of the certificate provided for by RIPA s8(4)(b),
which the ISC described as “expressed in very general terms” (6.49 above), the
purposes for which material or data is sought should be spelled out by reference to
specific operations or mission purposes. I accept that those operations and/or
mission purposes are likely to be numerous and (as in the example given in
Recommendation 43: “attack planning by ISIL in Iraq/Syria against the UK”) may
themselves be fairly broad in nature. I believe though that this change will help focus
minds on the specific reasons why bulk interception is said to be necessary, dispelling
the notion that bulk warrants are “untargeted” and illustrating their kinship with the
familiar concept, in many countries, of a thematic warrant that is issued in support of
a particular operation.
14.76. The distinction between internal and external communications was widely attacked
as arbitrary and misleading by civil society groups who made submissions to the
review (12.25-12.26 above). I agree with them that the distinction is outdated in the
context of internet communications and should be abandoned. Its value as a
protection for persons inside the UK is limited in any event by the inescapable fact
that a “by-catch” of internal communications is collected at the same time: for the
purposes of the protection of persons within the UK, it is, rather, RIPA s16 which must
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