Investigatory Powers Commissioner’s Annual Report 2019
Development, testing and training
10.18
Sections 101(1) (f), (g) and (h) of the IPA introduced specific categories of warrant for
training and testing. We would expect these to be used thematically, covering a type
of training or type of equipment under development. We were briefed by GCHQ on
certain testing, training and development activity with respect to targeted equipment
interference (TEI).23 We were satisfied that this activity was necessary and being used in a
proportionate manner.
10.19
In our 2018 report, we commented on the quality of GCHQ’s Records of Reliance with
respect to certain activities undertaken by contractors and industry partners conducted
under section 5 of the ISA. This activity is now conducted under one of the IPA TEI warrants
referred to above. GCHQ have subsequently improved the way in which they record
such activity.
Targeted examination warrants (TXEI)
10.20
Targeted examination warrants are required to select for examination protected material
obtained under bulk warrants when the target is known to be in the British Islands.
Continuity of Coverage Authorisations (CCA) are obtained to allow the selection for
examination of such material to continue for a limited period when a subject previously
believed to be overseas is found to be in the British Islands. The CCA is valid for a period
of five working days, by which time the agency must have either obtained a TXEI warrant
or ceased selection for examination using selectors authorised under the bulk warrant. We
were satisfied with the way that GCHQ was managing TXEIs and CCAs and we found that
GCHQ seeks to rely on a TXEI when a British Islands connection cannot be ruled out, which
represented best practice in this area.
Bulk equipment interference (BEI)
10.21
We received briefings on various EI techniques during inspections and bespoke sessions.
We welcome this level of engagement in what is a complex area. GCHQ warrant
applications and renewals were generally completed to a high standard with often complex
technical issues clearly explained.
10.22
A large proportion of GCHQ EI operations are conducted under bulk authorisations. We are
content that it is still appropriate for GCHQ to continue to authorise these activities through
bulk warrants especially given the additional safeguard of necessity and proportionality
being addressed at the point when they can be most accurately assessed. Given the scale
of the activity being approved internally, we will continue our enhanced ex post facto
oversight as described above. We will take the same approach with internal approvals
under all new and proposed BEI warrants and subject these to close scrutiny at future
inspections. We are satisfied that GCHQ continue to consider carefully on a case-by-case
basis whether it is most appropriate to authorise EI activity under bulk or targeted warrants
and we will continue to pay close attention to this both during our consideration of warrant
applications under the double lock and at inspections.
23 Section 101(1) sets out the subject matter that is permissible for targeted equipment interference. 101(1)(f)
relates to equipment which is being, or maybe, used for the purposes of a particular activity or activities of
a particular description; 101(1)(g) relates to equipment which is being, or may be, used to test, maintain or
develop capabilities relating to interference with equipment for the purpose of obtaining communications,
equipment data or other information. 101(1)(h) relates to equipment which is being, or may be, used for
the training of persons who carry out, or are likely to carry out, such interference with equipment.
65