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A Democratic Licence to Operate
communications data now available. The Panel agree with the Anderson Report that
it would be sensible to introduce a new type of warrant, covering the collection of
communications data in bulk, in addition to the present ability to obtain warrants for
access to content data in bulk.
5.57
Currently the most contentious issue is whether it is more appropriate for government
ministers or judicial officials to authorise warrants (though there is universal agreement
that judicial figures should audit warrant applications, as is currently the case). There
are good, clear arguments on both sides, which have been set out in detail by both the
ISC and the Anderson reports. In summary, these arguments tend to relate to issues
of trust (it is widely held that judges inspire greater public confidence than ministers),
capability (whether both parties are able to make legal assessments and judgements
over political risk) and accountability (ministers are accountable to Parliament for their
decisions, whereas a right to appeal exists for those dissatisfied with a judicial decision).
5.58
Under the current system, a distinction is made between a warrant granted under
Section 8(1) of RIPA 2000, which must name or describe the subject of the interception,
as well as the ‘selectors’ (such as an e-mail address, postal address, telephone number
and so on) that will be used to identify the communications that are to be intercepted,
and a warrant granted under Section 8(4) of RIPA 2000 that does not need to name
the subject of interception, nor does it impose an express limit on the number of
external communications which may be intercepted. Separately, it has been suggested
a number of times to the Panel that the distinction between domestic and international
communications is likely to become irrelevant in the Internet age. Likewise, we also
believe that future legislation should distinguish more clearly between data in
transmission and stored data.17
Recommendation 9: We agree with both the ISC and Anderson reports that there should
be different types of warrant for the interception and acquisition of communications
and related data, and have drawn on both sets of recommendations. We recommend
three types of warrant for the interception of communications and an authorisation for
communications data:
1.
2.
For the interception of communications in the course of transmission we suggest
two different types of warrant:
a. A specific interception warrant which should be limited to a single person,
premises or operation
b. A bulk interception warrant which would allow content data and related
communications data to be obtained.
For the acquisition of communications data in bulk, a bulk communications data
warrant which would be limited to the acquisition of communications data
17. The current view (as expressed in Edmondson & ors v R [2013] EWCA Crim 1026) is
unclear, especially for e-mails that have been read and stored.