26
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
4.32. The safeguards set out in paragraphs 4.28 – 4.31 also apply to any section 8(4)
material (see chapter 6) which is selected for examination and which constitutes
confidential information.
...
6. INTERCEPTION WARRANTS (SECTION 8(4))
6.1. This section applies to the interception of external communications by means
of a warrant complying with section 8(4) of RIPA.
6.2. In contrast to section 8(1), a section 8(4) warrant instrument need not name or
describe the interception subject or a set of premises in relation to which the
interception is to take place. Neither does section 8(4) impose an express limit on the
number of external communications which may be intercepted. For example, if the
requirements of sections 8(4) and (5) are met, then the interception of all
communications transmitted on a particular route or cable, or carried by a particular
CSP, could, in principle, be lawfully authorised. This reflects the fact that section 8(4)
interception is an intelligence gathering capability, whereas section 8(1) interception
is primarily an investigative tool that is used once a particular subject for interception
has been identified.
6.3. Responsibility for the issuing of interception warrants under section 8(4) of
RIPA rests with the Secretary of State. When the Secretary of State issues a warrant of
this kind, it must be accompanied by a certificate. The certificate ensures that a
selection process is applied to the intercepted material so that only material described
in the certificate is made available for human examination. If the intercepted material
cannot be selected to be read, looked at or listened to with due regard to
proportionality and the terms of the certificate, then it cannot be read, looked at or
listened to by anyone.
Section 8(4) interception in practice
6.4. A section 8(4) warrant authorises the interception of external communications.
Where a section 8(4) warrant results in the acquisition of large volumes of
communications, the intercepting agency will ordinarily apply a filtering process to
automatically discard communications that are unlikely to be of intelligence value.
Authorised persons within the intercepting agency may then apply search criteria to
select communications that are likely to be of intelligence value in accordance with
the terms of the Secretary of State’s certificate. Before a particular communication
may be accessed by an authorised person within the intercepting agency, the person
must provide an explanation of why it is necessary for one of the reasons set out in the
certificate accompanying the warrant issued by the Secretary of State, and why it is
proportionate in the particular circumstances. This process is subject to internal audit
and external oversight by the Interception of Communications Commissioner. Where
the Secretary of State is satisfied that it is necessary, he or she may authorise the
selection of communications of an individual who is known to be in the British
Islands. In the absence of such an authorisation, an authorised person must not select
such communications.
Definition of external communications
6.5. External communications are defined by RIPA to be those which are sent or
received outside the British Islands. They include those which are both sent and
received outside the British Islands, whether or not they pass through the British
Islands in the course of their transmission. They do not include communications both
sent and received in the British Islands, even if they pass outside the British Islands en