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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(d) observing online criminality (for example, which websites are
being visited for the purposes of terrorism, child sexual exploitation or
purchases of firearms or illegal drugs); and
(e) exploiting data (for example, to identify where, when and with
whom or what someone was communicating, how malware or a denial of
service attack was delivered, and to corroborate other evidence).
164. Moreover, analysis of communications data could be performed
speedily, making it extremely useful in fast-moving operations, and use of
communications data could build a case for using a more intrusive measure,
or deliver the information that would make other measures unnecessary.
165. His proposals for reform can be summarised as follows:
(a) A comprehensive and comprehensible new law should be drafted,
replacing “the multitude of current powers” and providing clear limits
and safeguards on any intrusive power it may be necessary for public
authorities to use;
(b) The definitions of “content” and “communications data” should
be reviewed, clarified and brought up-to-date;
(c) The capability of the security and intelligence agencies to practice
bulk collection of intercepted material and associated communications
data should be retained, but only subject to strict additional safeguards
including the authorisation of all warrants by a Judicial Commissioner at
a new Independent Surveillance and Intelligence Commission (“ISIC”);
(d) The purposes for which material or data was sought should be
spelled out in the accompanying certificate by reference to specific
operations or mission purposes (for example, “attack planning by ISIL in
Iraq/Syria against the UK”);
(e) There should be a new form of bulk warrant limited to the
acquisition of communications data which could be a proportionate
option in certain cases;
(f) Regarding the authorisation for the acquisition of communications
data, designated persons should be required by statute to be independent
from the operations and investigations in relation to which the
authorisation is sought;
(g) Novel or contentious requests for communications data, or
requests for the purpose of determining matters that are privileged or
confidential, should be referred to the ISIC for determination by a
Judicial Commissioner;
(h) The ISIC should take over intelligence oversight functions and
should be public-facing, transparent and accessible to the media; and
(i) The IPT should have the capacity to make declarations of
incompatibility and its rulings should be subject to appeals on points of
law.