Law enforcement bodies

Outside of the security and intelligence agencies such as GCHQ, around 600 public authorities hold the power to request communications data. In his 2015 report, the Independent Reviewer of Terrorism Legislation, David Anderson QC, distinguished between “major” law enforcement agencies, including police forces – who make the great majority of requests for communications data – and “minor users” of data including other national public authorities such as Ofcom and the Gambling Commission, as well as the 430 local authorities. [1]

A further distinction can be made between the small number of bodies which have the power to intercept communications, under RIPA Part 1 Chapter 1, and those that do not. The law enforcement bodies with this power are the National Crime Agency, the Metropolitan Police Service, the Police Service of Northern Ireland, Police Scotland, and Her Majesty’s Revenue and Customs. According to the 2015 IOCC report, 2,795 interception warrants requested by these bodies were approved in 2014; 68% concerned serious crime and 31% were related to national security. [2]

[1] David Anderson Q.C., ‘A question of trust’, Report of the Investigatory Powers Review, July 2015, p.166

[2] Rt. Hon. Sir Antony May, ‘Report of the Interception of Communications Commissioner’, March 2015, pp.26-28.

Special Envoy on Intelligence and Data Sharing

The government appointed Sir Nigel Sheinwald as the Prime Minister’s Special Envoy on Intelligence and Law Enforcement Data Sharing in September 2014. His role was created to work with foreign governments and US communication service providers (CSPs) to improve access to data across different jurisdictions for intelligence and law enforcement purposes.

2015 Summary of Progress

In June 2015, a summary of the Special Envoy’s work was published, in which Sir Nigel outlines his activities since being appointed. [1] Under the heading ‘Short Term Cooperation’, he describes his work with Content Service Providers and the US Government to develop new solutions to ongoing legal concerns around data sharing, as well as dealing with urgent issues around counter-terrorism and threat to life cases.

In the summary Sir Nigel also recommends a number of proposals, including improving government-Government cooperation, and reforming the US/UK Mutual Legal Assistance Treaty to standardise and simplify the process of information-sharing, in particular to “make it easier for UK police to access communications data directly from the US CSPs.” Sir Nigel also suggests the building of a new international framework between certain democratic countries to serve as a long-term, sustainable solution to data sharing. Finally, he recommends that “the Government looks at how it can improve transparency around the number and nature of our requests to overseas and domestic Communication Service Providers”, through better coordination with these companies.

[1] Sir Nigel Sheinwald, Summary of the Work of the Prime Minister’s Special Envoy on Intelligence and Law Enforcement Data Sharing, accessible at  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438326/Special_Envoy_work_summary_final_for_CO_website.pdf

Intelligence and Security Committee

The Intelligence and Security Committee of Parliament is a committee of Parliament designed to oversee the intelligence and security activities of the Security Service, the Secret Intelligence Service and GCHQ. It was established in the Justice and Security Act 2013; prior to this the committee was established by the Intelligence Services Act 1994. It is thus a statutory committee and enjoys more powers than a standard parliamentary select committee.

The Committee consists of nine Members drawn from both Houses of Parliament. The Chair is elected by its Members. The Members of the Committee are subject to Section 1(1)(b) of the Official Secrets Act 1989 and are routinely given access to highly classified material in carrying out their duties.

The Committee sets its own agenda and work programme. It takes evidence from Government Ministers, the heads of the intelligence Agencies, officials from the intelligence community, and other witnesses as required. The Committee is supported in its work by an independent Secretariat and an Investigator. It also has access to legal, technical and financial expertise where necessary.

2015 Report on Privacy and Security

A report published by the committee in 2015 investigated the legality of the Agencies use of interception and other powers. [1] A major focus of the investigation was the scale of Agency interception of communications. The committee found that GCHQ’s bulk interception systems collect only a small amount of communications from a small percentage of the bearers that make up the Internet; these activities “cannot therefore realistically be considered blanket interception” [2]. The use of filters and search queries reduce the quantity of communications that are opened and read by human analysts.

The report also distinguished between ‘internal’ communications between two or more people in the UK, and ‘external’ communications’ involving at least one foreign participant. Different systems of warrants apply here: in the former case, a RIPA 8(1) warrant signed by a Secretary of State naming the individual is required for targeted interception; in the latter case, a broader authority exists under section 8(4) for searching without naming an individual, also through a warrant signed by a Secretary of State.

The report also addresses the question of the access to and use of communications data, or metadata. It finds a continuing meaningful distinction between content and communications data, finding that “while the volume of CD available has made it possible to build a richer picture of an individual, this remains considerably less intrusive than content. It does not therefore require the same safeguards as content does. [3]” Nonetheless, the report highlights the growing grey area between these two categories of data, including “information such as web domains visited or the locational tracking information in a smartphone.” The report therefore recommends that this category of data be labelled ‘Communications Data Plus”, and that it should “attract greater safeguards than the narrowly drawn category of Communications Data.”

In addition, the report considered agency use of other powers, including targeted surveillance, interference with property and wireless technology, the reading of encrypted communications and the use of covert human intelligence sources.

 

[1] Intelligence and Security Committee, Report on Privacy and Security, 2015. Accessible at http://isc.independent.gov.uk/files/20150312_ISC_P+S+Rpt(web).pdf

[2] Ibid., p.4

[3] Ibid., p.6

GCHQ

The UK’s Government Communications Headquarters (GCHQ), alleged by Edward Snowden to be undertaking mass surveillance of online activities, operates under the Intelligence Services Act 1994. GCHQ’s first statutory function is “to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material”. [1] GCHQ is understood to be exclusively responsible for large-scale interception, although it undoubtedly shares information with a range of other intelligence, policing and tax authorities.

GCHQ’s Director must ensure “that there are arrangements for securing that no information is obtained by GCHQ except so far as necessary for the proper discharge of its functions and that no information is disclosed by it except so far as necessary for that purpose or for the purpose of any criminal proceedings”. [2] These functions can be exercised ‘in the interests of national security, the economic well-being of the UK,’ and ‘in support of the prevention or detection of serious crime’. [3]

[1] Intelligence Services Act 1994, s.3 (1)(a).

[2] Intelligence Services Act 1994, s.4 (2).

[3] Intelligence Services Act 1994, s.3 (2).

Independent Reviewer of Terrorism Legislation

The Independent Reviewer of Terrorism Legislation is appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006. The current Independent Reviewer, David Anderson QC, recently conducted a review of the “operation and regulation of investigatory powers” as required by DRIPA. The review was published in 11th June 2015 [1].

In the report, Anderson recommended a ‘clean-slate’ approach to future legislation in this area, to overcome the current situation, which is viewed as tangled and complex. In principle, Anderson recommended that powers for the bulk collection of  “external” communications, which begin or end outside the British Isles, be maintained, though the process of authorisation of this collection should be made more transparent, with warrants granted by a new judicial body — an Independent Surveillance and Intelligence Commission, which also merges the functions of existing oversight bodies. (Other recommendations are outlined on relevant entries in this database.) Theresa May, the Home Secretary, has said that the government will propose legislation in response to Anderson’s recommendations in the autumn of 2015.

[1] Accessible at https://terrorismlegislationreviewer.independent.gov.uk/

Intelligence Services Commissioner

The Intelligence Services Commissioner is a post provided for by RIPA to oversee the use of RIPA powers. The Commissioner should hold or have held high judicial office, and is appointed by the Prime Minister. The position is part-time, with a part-time secretary. To conduct the oversight function, the Commissioner has the power to obtain “documents and information as he may require” from officials, and has an annual reporting obligation to the Prime Minister. The most recent report, however, was released in 2013. [1] This report detailed how, after allegations about GCHQ‘s unlawful activities, the Commissioner “was able to visit GCHQ immediately and confront them.” The Commissioner went on to conclude that “The results of this questioning and briefing allowed me to conclude that GCHQ were not circumventing the law in the UK”.

A major recommendation of the Anderson Review is to merge the existing functions of the ISC with the other commissioners to form the Independent Surveillance and Intelligence Commission.

[1] Accessible at http://intelligencecommissioner.com/

Interception of Communications Commissioner

The Interception of Communications Commissioner is a post provided for by RIPA to oversee the use of RIPA interception powers. The Commissioner should hold or have held high judicial office, and is appointed by the Prime Minister. The Commissioner has nine inspectors to oversee the use of communications data and prison interception, and two office staff.

To conduct the oversight function, the Commissioner has the power to obtain “documents and information as he may require” from officials, and has a half-year reporting obligation to the Prime Minister. This regular report, which was most recently published in March 2015 [1], reports top-line statistics regarding state access to communication data, but these are not broken down by the types of crime investigated. In addition, the Commissioner’s Office writes to individuals it discovers have been the subjects of questionable surveillance, encouraging them to bring a case to the IPT. The Anderson Review describes the Commissioner’s reports as “by no means whitewashing exercises”, noting the several significant caveats and hundreds of recommendations made to public authorities in the most recent report and commends them as “a model of their kind”. [2]

A major recommendation of the Anderson Review is to merge the existing functions of the IOCCO with the other commissioners to form the Independent Surveillance and Intelligence Commission.

 

[1] Accessible at http://www.iocco-uk.info/

[2] David Anderson Q.C., ‘A question of trust’, Report of the Investigatory Powers Review, July 2015, p.120.

 

Investigatory Powers Tribunal

The Investigatory Powers Tribunal (IPT), established by RIPA, has exclusive jurisdiction to hear complaints about the intelligence agencies or interception (ss.65-70). However, since individuals are not automatically notified they have been the subject of interception or other surveillance, they have limited opportunity to contest it at the Tribunal.

The IPT is not one of the “senior courts” that under the Human Rights Act may make a declaration of incompatibility of UK law with the ECHR. It has no duty to publish any details of its negative decisions. Nor may decisions be appealed.

Before the Snowden revelations, there were only a handful of cases for which detailed decisions in this area had been published. More recently there have been a series of decisions, most significantly Liberty and others. The latter case marked the first time that the Tribunal had ruled against the security services.

The Anderson Review recommended that the IPT “should have an expanded jurisdiction and the capacity to make declarations of incompatibility; and its rulings should be subject to appeal on points of law.” [1]

[1] David Anderson Q.C., ‘A question of trust’, Report of the Investigatory Powers Review, July 2015, p.8.