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Investigatory Powers Commissioner’s Annual Report 2019
that this would give authorising officers greater ownership of the process and would
increase our level of confidence in this process.
8.17
In response to a number of recommendations relating to DSAs, MI5 implemented an
action plan. However, we were disappointed that this had failed to deliver the necessary
improvements by our second inspection in November. MI5 have formulated a new
action plan targeted at authorising officers and our first inspection in 2020 will focus on
monitoring the progress of remedial action against these recommendations.
8.18
In general, however, the standard of MI5’s surveillance documentation and supporting
policies is good and we underline that we reviewed a small proportion of their casework.
We focused on thematic authorisations and were clear in each case that this was the
appropriate means of authorising the proposed actions. In some cases, we noted that
the scale of the planned operation could be more clearly articulated. We expect that
the reliance on thematic authorisations, to which individual targets may be added and
removed, will be addressed as part of the above programme of work and expect to see
recording of more consistent reviews of individuals named on any active authorisation.
8.19
We have encouraged MI5 proactively to brief us on new techniques and tools, which
gives us the opportunity to discuss any potential legal issues at the earliest opportunity.
MI5 drew to our attention two cases which related to an experimental surveillance
capability. We noted that the records relating to these cases were of a high standard
and demonstrated that MI5 had engaged legal and ethical experts in the planning of
novel operations.
Property Interference
8.20
MI5’s work under property warrants relies on tried and tested techniques and our oversight
in 2019 did not identify any substantial issues. As with the other agencies, a proportion
of the activity previously conducted solely under Intelligence Services Act (ISA) section
5 is now conducted under the Investigatory Powers Act 2016 (IPA), either because it is
equipment interference, or as part of a combined equipment interference warrant. This
means that our Judicial Commissioners (JCs) approve warrants covering a substantial
proportion of MI5’s operations relating to property interference and have found that the
casework for the proposed operations continues to be of a high standard.
8.21
Once it is considered no longer to be necessary and proportionate to continue to collect
eavesdropping product from devices installed within a target property, MI5 will stop
actively monitoring the device and will plan to remove the device from the property.
This can be a challenging activity and in some cases it is necessary to declare the device
‘irretrievable’. In all cases, the device will eventually become inactive, incapable of being
monitored despite its ongoing presence in the property because of, for example, a dead
battery. The Commissioner has noted that the preference should always be to extract
that equipment at the earliest opportunity with minimal intrusion into the privacy of the
occupant(s). MI5 is continuing to review the way in which devices are retrieved to maximise
the opportunity to do so but are looking to ensure this is carefully balanced against
intrusion considerations.
Targeted Interception (TI) and Equipment Interference (EI)
8.22
MI5 continues to make extensive use of combined warrants under Schedule 8 to the IPA.
During 2019 we conducted a single combined inspection looking at Targeted Interception