Report of the Independent Surveillance Review
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Access to communications data retained by CSPs: traffic data, service-use
information and subscriber information, often obtained retrospectively
from the provider.
3.36
As illustrated by the debate over surveillance and privacy in the wake of the Snowden
disclosures, one of the most contentious capabilities is the interception of, and access
to, communications – whether those of an individual or in bulk. In order for a CSP
to intercept the communications, they must be provided with a warrant signed by a
secretary of state (typically the home secretary for warrant applications by MI5, and the
foreign secretary for warrant applications by GCHQ and SIS). The legal framework for the
warrant process is set out in more detail in Chapter IV.
3.37
Warrant applications must feature a Human Rights Act justification, in which the
agency sets out what is commonly referred to as the triple test, designed to ensure that
the warrant is:
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For a lawful purpose: the application must meet at least one of the three
categories of intelligence requirement (in the interests of national security,
for the purpose of preventing or detecting serious crime, or for the purpose of
safeguarding the economic well-being of the UK in circumstances relevant to the
interests of national security)
Necessary: the intrusion is needed to achieve one of the purposes listed above,
and the information cannot be reasonably obtained by any other means
Proportionate: the intrusion is reasonable in accordance with the intelligence
requirement, and does not unnecessarily intrude upon the privacy of the
individual (or those that might also be affected, such as the individual’s family
or close acquaintances).
3.38
Warrant applications go through a number of checks before they are finally approved.
Internally within the relevant agency, the paperwork will be checked by warrantry
staff and legal advisers before being submitted to a senior official, who will review the
application and (if satisfied) sign it off on behalf of the head of the agency.
3.39
The application is sent to the dedicated warrant teams in the Home Office (in the case
of MI5) and Foreign Office (in the case of SIS and GCHQ). Once again, the applications
are checked and assessed, including ensuring that legal and policy advice is taken when
needed, before being submitted to the secretary of state for their decision. At any
point in this process, the application can be returned to the analyst for modification,
clarification or additional information.
3.40
The current Home Secretary Theresa May has said that warrantry decisions occupy
‘more of my time ... than anything else’. She dealt with the majority of over 2,700
warrants that were handled by the Home Office in 2014, personally authorising 2,345