Wednesday 12 August 2015

The Coming UK Surveillance Debate: Bulk interception, Part 2

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

Previous: Bulk Interception, Part 1
Next: Bulk Interception, Part 3

The Section 8(4) certificate. Human examination of content captured under a Section 8(4) warrant is restricted in two ways.  Some types of selection factor are forbidden under Section 16. This prevents selection targeted at the communications of people for the time being within the British Islands, without express further authorisation or in some exceptional situations. Human examination must also be limited to material of a kind set out in a certificate issued by the Secretary of State and applicable to the warrant.

A curious feature of the current regime is that these restrictions do not apply to communications data intercepted alongside their parent content.  There is a growing sense that analysis of communications data (although in a broader sense than the RIPA definition – see Anderson 7.24) may be more important to the agencies than looking at content. The ISC said:
“We were surprised to discover that the primary value to GCHQ of bulk interception was not in the actual content of communications, but in the information associated with those communications.” [80]
The Section 8(4) certificate can be in very broad terms.  It has been suggested in the past that it could be as broad as communications with a named  country.  The ISC commented that the categories are: 
“expressed in very general terms”. The Anderson report added: “As a result, very large volumes of communications may be both intercepted and examined under a s8(4) warrant, though GCHQ’s safeguarding and compliance mechanisms, and limitations on storage capacity, limit what can be actively processed or used.”

The ISC for the first time provided an example of a certificate:
“Material providing intelligence on terrorism (as defined by the Terrorism Act 2000 (as amended)), including, but not limited to, terrorist organisations, terrorists, active sympathisers, attack planning, fund-raising”. [101]
Another example was:
 “strategic environmental issues including… ***” [102]
The ISC was concerned that the Certificate appeared unnecessarily ambiguous and could be misinterpreted. [103]

The recommendations of the reviews in respect of the Section 8(4) Certificate are:
In the interests of transparency the Certificate should be published. (Recommendation N)
In lieu of the Certificate the purposes for which material or data is sought should be spelled out by reference to specific operations or mission purposes. (Recommendation 43(b))
recognising that even untargeted collection must be specifically aimed at achieving an authorised mission or intelligence requirement (5.49)

Anderson suggests an example of an operation or mission-specific purpose: “attack planning by ISIL in Iraq/Syria against the UK”.

Anderson also recommended that bulk interception warrants to capture the content of communications should not be used where a proposed new type of bulk warrant limited to communications data would suffice. (Recommendation 42(b))

GCHQ had asked that such a warrant should extend beyond the current RIPA definition of communications data and include ‘content-derived’ metadata, such as an e-mail address mentioned in the body of an e-mail.  The Anderson recommendation does not appear to go this far.  However he does recommend a review, as open and inclusive as possible, of the borderline between content and communications data (Explanation 12(c), Recommendation 12).

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