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Investigatory Powers Commissioner’s Annual Report 2019
10.23
We recommended that all applications should consistently and explicitly record the link
between the target and a statutory purpose and intelligence requirements. We also
recommend that all applications should clearly address the potential for collateral intrusion
and relevant mitigations when assessing proportionality. We identified particular need
for improvement in one business area. We looked into the issue more closely during
our second inspection in 2019 and noted some progress, but there is still room for
improvement. We observed one other case where a targeted individual did not match the
description given in the application and will continue to pay close attention to this area at
future inspections.
Operational purposes
10.24
GCHQ may only select for examination material obtained through bulk equipment
interference for one of the operational purposes listed on the warrant. We are satisfied that
GCHQ’s use of operational purposes with respect to the examination of material obtained
through EI is appropriate.
Additional measures imposed by the Secretary of State
10.25
Most bulk authorisations are granted against the full range of available operational
purposes to allow any intelligence obtained to be used effectively by the requesting
agency.24 In renewing two GCHQ BEI warrants, the Secretary of State required to be
consulted prior to any proposal to undertake activity in support of a small number of those
operational purposes. We endorse the Secretary of State’s requirement to be consulted
by GCHQ, which creates an additional safeguard in the form of ministerial oversight and
ensures that the minister is well sighted where the necessity and proportionality of specific
operational activities may be particularly finely balanced.
Bulk interception
10.26
As noted in chapter 2, in September 2018 the European Court of Human Rights (ECtHR)
handed down its judgment in Big Brother Watch v. UK. Whilst the case is pending the
result of an appeal hearing before the Grand Chamber, the judgment included a number of
findings which are relevant to our oversight of bulk interception and which, in consultation
with GCHQ, we have factored in to our planning for future inspections.
10.27
In particular, in relation to the bulk interception regime under RIPA which has since been
replaced by provisions in the IPA, the Court was:
“not persuaded that the safeguards governing the selection of bearers for interception
and the selection of intercepted material for examination are sufficiently robust to
provide adequate guarantees against abuse. Of greatest concern, however, is the
absence of robust independent oversight of the selectors and search criteria used to filter
intercepted communications.” (paragraph 347)
24 Section 178 of the IPA requires that a bulk equipment interference warrant must specify the operational
purposes for which any material obtained under the warrant may be selected for examination. The CoP
section 6.6 states that it is highly likely that a bulk equipment interference warrant will specify the full range
of operational purposes (in accordance with section 183(6)) of the IPA.