CHAPTER 14: EXPLANATIONS
issue guidance for the benefit of requesting authorities65 (Recommendation 95
above), this procedure presents an opportunity for judicial guidance to be offered (in
the manner of guideline sentencing judgments, or the partly-published opinions of the
FISA Court in the US and Federal Court in Canada) in relation to what is and is not
appropriate in a fast-changing area.
USE OF INTERCEPTED MATERIAL AND DATA (Recommendations 72-81)
14.87. Recommendations 72-74 aim to ensure that:
(a)
safeguards at least as strong as those currently in place should apply to the
disclosure, dissemination, copying, storage and retention of intercepted
material; and that
(b)
equivalent safeguards should be provided in relation to communications data,
backed by ISIC audits, extending to the processing of data for reasons going
beyond their acquisition and to the use of data in conjunction with other
datasets.
14.88. Recommendation 75, which supplements the more general references to the sharing
of data in Recommendations 73(c) and 76-78, would ensure that so long as the
security and intelligence agencies each operate the required safeguards, they may
share intercepted material and communications data between themselves for the
purposes of their respective statutory functions.
Use of material recovered under bulk warrants
14.89. Recommendation 79 would, if adopted, enhance the existing RIPA s16(3) safeguard
on the use of intercepted material recovered under a bulk content warrant. It would
do so by requiring a specific interception warrant, issued by a Judicial Commissioner,
before content that relates to a communication involving a person believed to be in
the UK could be read, looked at or listened to. This would strengthen the current
requirement for a RIPA s16(3) modification, which the ISC said was “unnecessarily
complex and does not provide the same rigour as that provided by an 8(1) warrant”.66
The likely increase in rigour will be all the greater if, as I have recommended, the
successor to the s8(1) warrant is to be subject to authorisation by a Judicial
Commissioner.
14.90. I do not however go so far as the ISC in recommending that the same enhanced
protection should apply to UK nationals (though not the nationals of other states) when
outside the UK.67 The range of additional police powers and surveillance capabilities
that exist within the UK is an objective reason for requiring the use of intercepted
material recovered pursuant to a bulk warrant to be specifically warranted in the
normal way: less intrusive means of obtaining the information may have been
available. No such objective reason exists for favouring British nationals abroad, as
65
66
67
As in the OSC Procedures and Guidance booklet, December 2014, not publicly available, or (to take
another possible model) the partially redacted Opinions that are issued by the FISA Court in the US
and the Federal Court in Canada.
ISC Privacy and Security Report, March 2015, Recommendation Q.
Ibid., Recommendation R.
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