Wednesday 12 August 2015

The Coming UK Surveillance Debate: Targeted interception

One of a series of posts on the forthcoming Investigatory Powers Bill

RIPA Section 8(1) governs the ordinary targeted interception warrants issued by the Secretary of State, naming one person or a set of premises as the interception subject. They have been relatively uncontroversial, apart from the perennial disagreement over whether warrants should be judicially authorised. Nevertheless targeted warrants give rise to some issues.

Reasonable suspicion. Although it is often imagined that a section 8(1) warrant requires reasonable suspicion, that is not made explicit in RIPA.

Thematic warrants. It emerged in the ISC Report (paras 42 to 45) that Section 8(1) has been used for the issue of so-called thematic warrants. These are warrants for which the named subject is a group or network of persons rather than an individual.  Such warrants are possible because RIPA defines a ‘person’ as “any organisation or any association or combination of persons”.  The ISC expressed concern as to the extent that thematic warrants are used and around associated safeguards.

Recommendations of the three Reviews on thematic warrants:
Thematic warrants must be used sparingly and should be authorised for a shorter timescale than a standard 8(1) warrant. (Recommendation D)
My intention has been to encourage the use of thematic warrants (Recommendation 27), but within strict limits. The key issue here is the power of modification.
It should normally be for a Judicial Commissioner to make major modifications to a specific interception warrant, e.g. the addition of a new person or premises to the schedule. (Recommendation 34)
No recommendation

Ban on disclosure. Currently there is a blanket prohibition on disclosing the existence of both targeted and bulk interception warrants.

Recommendations of the three Reviews on disclosure:

Disclosure should be permissible where the Secretary of State considers that this could be done without damage to national security. (Recommendation C)
Within the constraints imposed by national security, the current restrictions and prohibitions relating to the disclosure of warrants and intercepted material (RIPA ss15 and 19, Official Secrets Act 1989 s4) should be clarified and reviewed
 in order to ensure, in particular, that:
(a) there is no legal obstacle to explaining the uses (and utility) of warrants to
Parliament, courts and public, and that

(b) as recommended by the Police Ombudsman for Northern Ireland in his report of 30 October 2014 on the Omagh bombing, there is absolute clarity as to how specific aspects of intelligence can be shared in order to assist in the investigation of crime. (Recommendation 10)
No recommendation

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