Never trust version 1.0 of any software. Wait until the bugs have been ironed out, only then open your wallet.
The same is becoming true of the UK’s surveillance legislation. No sooner was the ink dry on the Investigatory Powers Act 2016 (IP Act) than the first bugs, located in the communications data retention module, were exposed by the EU Court of Justice (CJEU)’s judgment in Tele2/Watson.
After considerable delay in issuing required fixes, Version 1.1 is currently making its way through Parliament. The pending amendments to the Act make two main changes. They restrict to serious crime the crime-related purposes for which the authorities may demand access to mandatorily retained data, and they introduce prior independent authorisation for non-national security demands.
It remains uncertain whether more changes to the data retention regime will be required in order to comply with the Tele2/Watson judgment. That should become clearer after the outcome of Liberty’s appeal to the Court of Appeal in its judicial review of the Act and various pending references to the CJEU.
Meanwhile the recent Strasbourg judgment in Big Brother Watch v UK (yet to be made final, pending possible referral to the Grand Chamber) has exposed a separate set of flaws in the IP Act’s predecessor legislation, the Regulation of Investigatory Powers Act 2000 (RIPA). These were in the bulk interception and communications data acquisition modules. To the extent that the flaws have been carried through into the new legislation, fixing them may require the IP Act to be patched with a new Version 1.2.
The BBW judgment does not read directly on to the IP Act. The new legislation is much more detailed than RIPA and introduces the significant improvement that warrants have to be approved by an independent Judicial Commissioner. Nevertheless, the BBW judgment contains significant implications for the IP Act.
The Court found that three specific aspects of RIPA violated the European Convention on Human Rights:
- Lack of robust end to end oversight of bulk interception acquisition, selection and searching processes
- Lack of controls on use of communications data acquired from bulk interception
- Insufficient safeguards on access to journalistically privileged material, under both the bulk interception regime and the ordinary communications data acquisition regime
End to end oversight
The bulk interception process starts with selection of the bearers (cables or channels within cables) that will be tapped. It culminates in various data stores that can be queried by analysts or used as raw material for computer analytics. In between are automated processes for filtering, selecting and analysing the material acquired from the bearers. Some of these processes operate in real time or near real time, others are applied to stored material and take longer. Computerised processes will evolve as available technology develops.
The Court was concerned about lack of robust oversight under RIPA throughout all the stages, but especially selection and search criteria used for filtering. Post factum audit by the Interception of Communications Commissioner was judged insufficient.
For its understanding of the processes the Court relied upon a combination of sources: the Interception Code of Practice under RIPA, the Intelligence and Security Committee Report of March 2015, the Investigatory Powers Tribunal judgment of 5 December 2014 in proceedings brought by Liberty and others, and the Government’s submissions in the Strasbourg proceedings. The Court described the processes thus:
“…there are four distinct stages to the section 8(4) regime:
1. The interception of a small percentage of Internet bearers, selected as being those most likely to carry external communications of intelligence value.
2. The filtering and automatic discarding (in near real-time) of a significant percentage of intercepted communications, being the traffic least likely to be of intelligence value.
3. The application of simple and complex search criteria (by computer) to the remaining communications, with those that match the relevant selectors being retained and those that do not being discarded.
4. The examination of some (if not all) of the retained material by an analyst).”
The reference to a ‘small percentage’ of internet bearers derives from the March 2015 ISC Report. Earlier in the judgment the Court said:
“… GCHQ’s bulk interception systems operated on a very small percentage of the bearers that made up the Internet and the ISC was satisfied that GCHQ applied levels of filtering and selection such that only a certain amount of the material on those bearers was collected.”
Two points about this passage are worthy of comment. First, while the selected bearers may make up a very small percentage of the estimated 100,000 bearers that make up the global internet (judgment, ), that is not same thing as the percentage of bearers that land in the UK.
Second, the ISC report is unclear about how far, if at all, filtering and selection processes are applied not just to content but also to communications data (metadata) extracted from intercepted material. Whilst the report describes filtering, automated searches on communications using complex criteria and analysts performing additional bespoke searches, it also says:
“Related CD (RCD) from interception: GCHQ’s principal source of CD is as a by-product of their interception activities, i.e. when GCHQ intercept a bearer, they extract all CD from that bearer. This is known as ‘Related CD’. GCHQ extract all the RCD from all the bearers they access through their bulk interception capabilities.” (emphasis added)
The impression that collection of related communications data may not be filtered is reinforced by the Snowden documents, which referred to several databases derived from bulk interception and which contained very large volumes of non-content events data. The prototype KARMA POLICE, a dataset focused on website browsing histories, was said to comprise 17.8 billion rows of data, representing 3 months’ collection. (The existence or otherwise of KARMA POLICE and similar databases has not been officially acknowledged, although the then Interception of Communications Commissioner in his 2014 Annual Report reported that he had made recommendations to interception agencies about retention periods for related communications data.)
The ISC was also “surprised to discover that the primary value to GCHQ of bulk interception was not in reading the actual content of communications, but in the information associated with those communications.”
If it is right that little or no filtering is applied to collection of related communications data (or secondary data as it is known in the IP Act), then the overall end to end process would look something like this (the diagram draws on Snowden documents published by The Intercept as well as the sources already mentioned):
Returning to the BBW judgment, the Court’s concerns related to intercepted ‘communications’ and ‘material’:
“the lack of oversight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst…”
There is no obvious reason to limit those observations to content. Elsewhere in the judgment the Court was “not persuaded that the acquisition of related communications data is necessarily less intrusive than the acquisition of content” and went on:
“The related communications data … could reveal the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. In bulk, the degree of intrusion is magnified, since the patterns that will emerge could be capable of painting an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with…”.
The Court went on to make specific criticisms of RIPA’s lack of restrictions on the use of related communications data, as discussed below.
What does the Court’s finding on end to end oversight mean for the IP Act? The Act introduces independent approval of warrants by Judicial Commissioners, but does it create the robust oversight of the end to end process, particularly of selectors and search criteria, that the Strasbourg Court requires?
The March 2015 ISC Report recommended that the oversight body be given express authority to review the selection of bearers, the application of simple selectors and initial search criteria, and the complex searches which determine which communications are read. David Anderson Q.C.'s (now Lord Anderson) Bulk Powers Review records (para 2.26(g)) an assurance given by the Home Office that that authority is inherent in clauses 205 and 211 of the Bill (now sections 229 and 235 of the IP Act).
Beyond that, under the IP Act the Judicial Commissioners have to consider at the warrant approval stage the necessity and proportionality of conduct authorised by a bulk warrant. Arguably that includes all four stages identified by the Strasbourg Court (see my submission to IPCO earlier this year). If that is right, the RIPA gap may have been partially filled.
However, the IP Act does not specify in terms that selectors and search criteria have to be reviewed. Moreover, focusing on those particular techniques already seems faintly old-fashioned. The Bulk Powers Review reveals the extent to which more sophisticated analytical techniques such as anomaly detection and pattern analysis are brought to bear on intercepted material, particularly communications data. Robust end to end oversight ought to cover these techniques as well as use of selectors and automated queries.
The remainder of the gap could perhaps be filled by an explanation of how closely the Judicial Commissioners oversee the various selection, searching and other analytical processes.
Filling this gap may not necessarily require amendment of the IP Act, although it would be preferable if it were set out in black and white. It could perhaps be filled by an IPCO advisory notice: first as to its understanding of the relevant requirements of the Act; and second explaining how that translates into practical oversight, as part of bulk warrant approval or otherwise, of the end to end stages involved in bulk interception (and indeed the other bulk powers).
Related Communications Data/Secondary Data
The diagram above shows how communications data can be obtained from bulk interception. Under RIPA this was known as Related Communications Data. In the IP Act it is known as Secondary Data. Unlike RIPA, the IP Act specifies a category of bulk warrant that extracts secondary data alone (without content) from bearers. However, the IP Act definition of secondary data also permits some items of content to be extracted from communications and treated as communications data.
Like RIPA, the IP Act contains few specific restrictions on the use to which secondary data can be put. It may be examined for a reason falling within the overall statutory purposes and subject to necessity and proportionality. The IP Act adds the requirement that the reason be within the operational purposes (which can be broad) specified in the bulk warrant. As with RIPA, the restriction that the purpose of the bulk interception must be overseas-related does not apply at the examination stage. Like RIPA, there is a requirement to obtain specific authority (a targeted examination warrant, in the case of the IP Act) to select for examination the communications of someone known to be within the British Islands. But like RIPA this applies only to content, not to secondary data.
RIPA’s lack of restriction on examining related communications data was challenged in the Investigatory Powers Tribunal. The government argued (and did so again in the Strasbourg proceedings) that this was necessary in order to be able to determine whether a target was within the British Islands, and hence whether it was necessary to apply for specific authority from the Secretary of State to examine the content of the target’s communications.
The IPT accepted this argument, holding that the difference in the restrictions was justified and proportionate by virtue of the need to be able to determine whether a target was within the British Islands. It rejected as “an impossibly complicated or convoluted course” the suggestion that RIPA could have provided a specific exception to provide for the use of metadata for that purpose.
That, however, left open the question of all the other uses to which metadata could be put. If the Snowden documents referred to above are any guide, those uses are manifold. Bulk intercepted metadata would hardly be of primary value to GCHQ, as described by the ISC, if its use were restricted to ascertaining whether a target was within or outside the British Islands.
The Strasbourg Court identified this gap in RIPA and held that the absence of restrictions on examining related communications data was a ground on which RIPA violated the ECHR.
The Court accepted that related communications data should be capable of being used in order to ascertain whether a target was within or outside the British Islands. It also accepted that that should not be the only use to which it could be put, since that would impose a stricter regime than for content.
But it found that there should nevertheless be “sufficient safeguards in place to ensure that the exemption of related communications data from the requirements of section 16 of RIPA is limited to the extent necessary to determine whether an individual is, for the time being, in the British Islands.”
Transposed to the IP Act, this could require a structure for selecting secondary data for examination along the following lines:
- Selection permitted in order to determine whether an individual is, for the time being, in the British Islands.
- Targeted examination warrant required if (a) any criteria used for the selection of the secondary data for examination are referable to an individual known to be in the British Islands, and (b) the purpose of using those criteria is to identify secondary data or content relating to communications sent by, or intended for, that individual.
- Otherwise: selection of secondary data permitted (but subject to the robust end to end oversight requirements discussed above).
Although the Court speaks only of sufficient safeguards, it is difficult to see how this could be implemented without amendment of the IP Act.
The Court found RIPA lacking in two areas: bulk interception (for both content and related communications data) and ordinary communications data acquisition. The task of determining to what extent the IP Act remedies the deficiencies is complex. However, in the light of the comparisons below it seems likely that at least some amendments to the legislation will be necessary.
For bulk interception, the Court was particularly concerned that there were no requirements either:
- circumscribing the intelligence services’ power to search for confidential journalistic or other material (for example, by using a journalist’s email address as a selector),
- requiring analysts, in selecting material for examination, to give any particular consideration to whether such material is or may be involved.
Consequently, the Court said, it would appear that analysts could search and examine without restriction both the content and the related communications data of those intercepted communications.
For targeted examination warrants the IP Act itself contain some safeguards relating to retention and disclosure of material where the purpose, or one of the purposes, of the warrant is to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material. Similar provisions apply if the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.
Where a targeted examination warrant is unnecessary the Interception Code of Practice provides for corresponding authorisations and safeguards by a senior official outside the intercepting agency.
Where a communication intercepted under a bulk warrant is retained following examination and it contains confidential journalistic material, the Investigatory Powers Commissioner must be informed as soon as reasonably practicable.
Unlike RIPA, S.2 of the IP Act contains a general provision requiring public authorities to have regard to the particular sensitivity of any information, including confidential journalistic material and the identity of a journalist’s source.
Whilst these provisions are an improvement on RIPA, it will be open to debate whether they are sufficient, particularly since the specific safeguards relate to arrangements for handling, retention, use and destruction of the communications rather than to search and selection.
Bulk communications data acquisition
The IP Act introduces a new bulk communications data acquisition warrant to replace S.94 of the Telecommunications Act 1994. S.94 was not considered in the BBW case. The IP Act bulk power contains no provisions specifically protecting journalistic privilege. The Code of Practice expands on the general provisions in S.2 of the Act.
Ordinary communications data acquisition
The RIPA Code of Practice required an application to a judge under PACE 1984 where the purpose of the application was to determine a source. The Strasbourg court criticised this on the basis that it did not apply in every case where there was a request for the communications data of a journalist, or where such collateral intrusion was likely.
The IP Act contains a specific provision requiring a public authority to seek the approval of the Investigatory Powers Commissioner to obtain communications data for the purpose of identifying or confirming a source of journalistic information. This provision appears to suffer the same narrowness of scope criticised by the Strasbourg Court.
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