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A Democratic Licence to Operate
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Any errors are reported to the commissioner and that the systems are reviewed
and adapted where any weaknesses or faults are exposed.33
4.50
During inspections, IOCCO examines warrants submitted by law-enforcement agencies
and SIAs and, in particular, the justifications of necessity and proportionality for any
interception, as well as whether less intrusive methods were available to achieve the same
objective. IOCCO ‘continues to challenge positively the necessity and proportionality
justifications put forward by the public authorities to ensure that the significant privacy
implications are always at the forefront of their minds when they are working to protect
the public in the interests of national security, to save life or to prevent or detect crime’.34
4.51
The inspections are also an opportunity for IOCCO to verify the warrant applications
for errors; its office operates a breaches and error reporting function to which public
authorities, CSPs and Internet companies are obliged to report any errors or breaches
for investigation.
4.52
IOCCO has responsibility for the oversight of any interception of communication in
the course of transmission carried by submarine cables. It examines the approvals to
conduct the interception, the surveys that have been conducted by the engineers in
relation to the material carried by those cables, and what percentage of the material
is of intelligence interest. In its 2014 report it was also revealed that the commissioner
had accepted a request from the prime minister to oversee (on a non-statutory basis)
directions issued under Section 94 of the Telecommunications Act 1984.35
4.53
The ISR Panel were told that the technical work that goes in before the actual interception
takes effect is very important, in terms of minimising intrusion and ensuring that large
amounts of incidental material are not intercepted. There is a question over whether
there is a suitable technological understanding by those overseeing the SIAs to be able
to check the coding that filters bulk data and applies the discriminating selectors. So far,
IOCCO does not check the code, nor does it currently have the capacity to do so, though
it has already begun to discuss with GCHQ what more can be done in terms of testing the
code and algorithms, and having greater access to their systems.36
4.54
In total, 2,795 interception warrants to access the content of communications were
authorised in 2014, an increase of 1.3 per cent on 2013. There were 1,605 extant
warrants on 31 December 2014, a 3.8 per cent decrease on 2013. Of these, twenty
were issued under Section 8(4), allowing for the collection of communications in large
33. Interception of Communications Commissioner’s Office (IOCCO), ‘Interceptions
Inspections’, <http://www.iocco-uk.info/sections.asp?sectionID=2&chapter=3&type=top>.
34. May, Report of the Interception of Communications Commissioner: March 2015, p. 2.
35. Ibid., Section 10. Section 94 of the Telecommunications Act 1984 had previously come
under criticism for allowing a Secretary of State to issue a direction in ‘the interests of
national security or relations with the government of a country or territory outside the
United Kingdom’ but without necessarily having to lay the direction before Parliament.
36. ISR round-table with the Commissioners, February 2015.