To: The Lord Phillips of Sudbury, House of Lords, London SWlA OPW 4th July 2000
RIP BILL COMMITTEE: CLAUSE l5
You raised a number of points with regard to clause 15 of the Bill during the Committee's deliberations; and I undertook at column 102 to respond to any which I was unable to cover at the time. This letter aims to live up to that promise. I hope you will not object to my copying this letter to Lord McNally, and also to Lord Cope, Viscount Astor, Lord Lucas, Viscount Goschen and the Earl of Noryhesk.
The safeguards set out in this clause are necessarily complicated. I believe we all accept the principle that a broader regime is appropriate for interception of external communications as against internal communications. It is also, I believe common ground that external interception is an extremely important source of intelligence, which is essential for national security and to assist in the struggle against serious crime, and complements, rather than duplicates what can be obtained by internal interception. The issue is therefore just how cl1at broader regime is defined. In deciding that, we need constantly to bear in mind what the Human Rights Act requires; and, further to that, what is practical in the real world and what is not. To insist on the latter would be to in1peril all the intelligence.
What is the purpose extent and scope of Section 15(3)?
Clause 15(3) is an updating of section 3(3) of the Interception of Communications Act 1985 (IOCA). However, technological change since 1985 means that it has to be expressed in more general terms. In 1985 the only "selection factors" that would be referable to a person in the British Islands were fixed telephone numbers, whose location was easily known. Today the agencies need to use factors such as mobile telephone numbers and email addresses, which do not have any unambiguous location; indeed they are specifically designed to be useable almost anywhere in the world. Hence the reference in clause 15(2) of "factors referable to an individual who is known to be ... in the British Islands". Clause 1.5(3) allows use of such factors only where the Secretary of State has explicitly authorised it, for a period not exceeding three months, using exactly the same tests as when he decides whether to authorise interception by warrant. Its intention is to allow the agencies, subject to that authorisation, the means to examine communications between the individual in question and unknown foreign correspondents. It will not 'override' the normal certificate (selection must still be for the purposes set out in clause 5(3)(a).(c)), but allow very carefully controlled variation to it.
How does clause 15(3) interlock with clause 8(3)?
The whole of clause 15 applies only to interception under a warrant complying with clause 8(3).
How do 8(3) and 15(3) interlock with clause 5(6)?
Clause 5(6) allows, under the authority of an interception warrant, all such conduct as it is necessary to undertake in order to do what the warrant expressly authorises. This conduct can include the interception of communications - whether external or internal - not identified by the warrant. But such interception must be the minimum necessary to achieve the object of the warrant, and must be proportionate to that object. The clause applies equally to warrants complying with clause 8(1) and (3). In the latter case it could, for example, make lawful the interception of internal communications where these mixed with external communications on a trunk used mainly for external purposes. Communications that originate and are received in the UK are always "internal"; as is well known, some of these will go abroad en route and so be carried on primarily external trunks. It is not possible to intercept the external communications on the trunk without intercepting the internal communications as well.
Clause 15(3) does not authorise the interception of any internal communications beyond the irreducible minimum covered by clause 5(6).
Are the "overlapping warrant" arrangements to
continue?
Yes. There will be cases in which a warrant complying with clause 8(1) cannot be put into effect in any other way; for example, when a person in the UK chooses, perhaps in an attempt to avoid interception, to use a foreign ISP .
Will it be lawful to trawl through a mixed pool of internal and external communications collected under a warrant complying with 8(3)?
As stated above, it is always possible that material intercepted from an external trunk may include internal comm11nications as well. This interception is made lawful by clause 5(6). Where this happens, it will often not be possible to distinguish the internal messages, especially if (as will often be the case) only parts of them pass over the particular trunk being intercepted. Thus in some cases selection will unavoidably be applied to all intercepted communications.
This selection is in practice designed to collect external communications that fit the descriptions in the certificate. It is therefore not likely to catch many internal communications. It would of course be unlawful to seek to catch internal communications in the absence of an overlapping warrant or a certificate complying with clause 15(3).
Would the existence of an overlapping warrant allow the lawful examination of internal communications?
An overlapping warrant, like any warrant complying with clause 8(1), authorises interception of all communications to or from the addresses etc specified in its schedules. This can include both internal and external communications. Such a warrant cannot, of course, legalise examination of internal communications other than to or from an address included in its schedule.
Would it be lawful - and is it intended - to serve warrants complying with clause 8(3) on Internet Service Providers?
General
I confirm what I said in the House, that a communication from one point in the British Islands to another point in the British Islands is 'internal' even if its route takes it outside the British Islands.
All interception and selection under a warrant complying with clause 8(3) will be subject to oversight by the Interception of Communications Commissioner. This continues the present situation with warrants under section 3(2) of IOCA. Clause 53(2)(d)(i) puts a duty on the Commissioner specifically to review the adequacy of the safeguards under clause 14, which include (by virtue of clause 14(1)(b)) those under clause 15.
Similarly, conduct under such a warrant may be investigated by the Tribunal. Specifically, if a person is aggrieved by interception that he believes to have taken place under a warrant complying with clause 8(3), he can complain to the Tribunal. If the Tribunal considers that the conduct of the intercepting agencies was unlawful or unjustified, it will be able to order appropriate redress.
LORD BASSAM OF BRIGHTON