22
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
“When an analyst selects communications that have been intercepted under the
authority of an 8(4) warrant for examination, it does not matter what form of
communication an individual uses, or whether his other communications are stored on
a dedicated mail server or in cloud storage physically located in the UK, the US or
anywhere else (and in practice the individual user of cloud services will not know
where it is stored). If he or she is known to be in the British Islands it is not
permissible to search for his or her communications by use of his or her name, e-mail
address or any other personal identifier.”
4. The Interception of Communications Code of Practice
87. Section 71 of RIPA provides for the adoption of codes of practice by
the Secretary of State in relation to the exercise and performance of his
powers and duties under the Act. Draft codes of practice must be laid before
Parliament and are public documents. They can only enter into force in
accordance with an order of the Secretary of State. The Secretary of State
can only make such an order if a draft of the order has been laid before
Parliament and approved by a resolution of each House.
88. Under section 72(1) of RIPA, a person exercising or performing any
power or duty relating to interception of communications must have regard
to the relevant provisions of a code of practice. The provisions of a code of
practice may, in appropriate circumstances, be taken into account by courts
and tribunals under section 72(4) RIPA.
89. The Interception of Communication Code of Practice (“the IC
Code”) was issued pursuant to section 71 of RIPA. The IC Code currently
in force was issued in 2016.
90. Insofar as relevant, the IC Code provides:
“3.2. There are a limited number of persons who can make an application for an
interception warrant, or an application can be made on their behalf. These are:
The Director-General of the Security Service.
The Chief of the Secret Intelligence Service.
The Director of the Government Communications Headquarters (GCHQ).
The Director-General of the National Crime Agency (NCA handles
interception on behalf of law enforcement bodies in England and Wales).
The Chief Constable of the Police Service of Scotland.
The Commissioner of the Police of the Metropolis (the Metropolitan Police
Counter Terrorism Command handles interception on behalf of Counter
Terrorism Units, Special Branches and some police force specialist units in
England and Wales).
The Chief Constable of the Police Service of Northern Ireland.
The Commissioners of Her Majesty’s Revenue & Customs (HMRC).
The Chief of Defence Intelligence.