Report of the Interception of Communications Commissioner - July 2016
7.17 The judgment whether it is proportionate to authorise the acquisition of
communications data requires holding a balance between (a) the necessity to engage
in potentially intrusive conduct and (b) the anticipated amount and degree of intrusion.
The judgment has to consider whether the information which is sought could reasonably
be obtained by other, less intrusive, means. Applications for communications data are
refused (or not applied for) where it is judged that the necessity does not outweigh the
intrusion. In order to justify that an application is proportionate the applicant must:
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outline how obtaining the data will benefit the investigation or operation;
confirm that relevant less intrusive investigations have already been
undertaken where possible;
describe the relevance of any time periods sought and how these are
proportionate to the event under investigation;
consider the rights (particularly to privacy, and in relevant cases, freedom of
expression) of the individual and balance these rights against the benefit to
the investigation;
consider any collateral intrusion that may occur; and,
consider any possible unintended consequences, particularly with regard
to complicated requests for traffic data or where the data sought relates to
individuals in professions with duties of confidentiality.
Improved Statistical Requirements
7.18 In previous reports41 we have referred to the inadequacy of the statistical
requirements in the Code of Practice. In particular the varying systems and administrative
practices within public authorities meant the number of applications, authorisations
and notices was not necessarily a reliable indicator with which to compare the actual
amount of communications data acquired by different public authorities. We have
always highlighted that the previous statistical provisions, which required the number of
applications and the number of authorisations and notices to be counted, did not give an
accurate representation of the amount of communications data actually acquired.
7.19 A more realistic picture is provided by totalling the number of “items of data”
acquired. The relationship between items of data, applications and authorisations and
notices was explained in a circular we published in November 2014.42 We previously
made the point that, items of data, as well as being a more accurate representation of
the amount of communications data acquired, will also be a considerably larger number
than the number of applications, authorisations or notices.
41 See section 7 http://iocco-uk.info/docs/IOCCO%20Report%20March%202015%20(Web).pdf
42 http://www.iocco-uk.info/docs/Relationship%20between%20applications,%20authorisations,%20
notices%20and%20items%20of%20data.pdf
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