Briefing Note - Section 15(3) THE "OVERRIDE"-CERTIFICATE

BY THE LORD COPE OF BERKELEY and THE LORD McNALLY

#22 Page 17, line 19, after ("is") insert ("in an external communication and is")

 

See also: http://www.fipr.org/rip/#Overlapping

 

·         FIPR note on Certificated & Overlapping Warrants, S.15.3 "safeguards" and domestic mass-surveillance

·         Lord Phillips' questions in Committee

·         Lord Bassam's written reply

 

  1. 1985 IOCA defined "certificated" interception warrants that do not name a specific target but contain a description of the material of interest. These warrants authorise GCHQ to collect very large quantities of external communications, and trawl for "key words" (bomb, Libya, Semtex etc.) with powerful super-computers.
  2. Certificated warrants are supposed only to be applied to external communications, but depending on the nature of the communication link intercepted, it may be very difficult to capture purely external. If the intercepted "trunk" is an undersea cable or microwave beam which physically leaves the UK, most (but not all) of the traffic will be external by definition, because…
  3. The government classes messages whose source and destination is inside the UK as internal, even if they are carried outside the UK during their journey. This is a very common occurrence with Internet communications, and it may in practice be difficult to identify such traffic as internal reliably (because in essence one has to match up the communication leaving with the one that arrives back).
  4. IOCA 1985 (and RIP) accordingly allow the capture of such extraneous internal material as is necessary to implement a certificated warrant, but contain a safeguard that the bulk-captured material can not be selected (by computer) for examination using a search parameter which relates to entities inside the UK.
  5. The reason for this distinction is to differentiate between use of targeted interception warrants for domestic policing (which is analogous to letter-opening), and use of trawling "mass-surveillance" warrants used for intelligence and national security purposes (which would have Orwellian implications in a domestic context).
  6. However, IOCA contained an exception that permitted trawling for an entity inside the UK solely for anti-terrorist purposes.
  7. At some point the question arose whether it would be lawful to examine internal communications that were thrown up by such a trawl, which were mixed up with the bulk-captured external material.
  8. Lord Lloyd referred to this problem in the first Interception Commissioner's Report, and apparently sanctioned a non-statutory innovation that he considered would lawfully permit :
    1. the examination of any such internal material; and
    2. trawling for purposes broader than anti-terrorism (national security, serious crime, economic well-being)
  9. Lord Lloyd christened this mechanism an "overlapping warrant" – by which he meant an ordinary (non-certificated) warrant, which names the addresses or premises targeted for interception, and allows the interception of any communications (internal or external) from those addresses.
  10. It is not clear whether an overlapping warrant is necessary for (a) above - although in spirit it would seem so.
  11. However, there appears to be a cart-before-horse logical problem (which is finessed in Lord Lloyd's treatment) regarding (b) above. How can the overlapping warrant specify the correct addresses until those addresses have been identified by an examination of the material in question? Remember, it is unlawful to select material using a UK-tied search factor except for counter-terrorist purposes, so it is impossible to discover what addresses (in general) should be written onto the overlapping warrant to legitimise such a search for other purposes.
  12. It is thus an open problem whether the practice of using overlapping warrants (which have no statutory basis) has in fact been lawful for the past fifteen years.

 

The RIP Bill and Section 15.3

 

  1. The construction and meaning of S.15(3) is obscure, but it creates a wholly new kind of certificate (which we call an override-certificate) that can be applied (for a three-month period) to a certificated warrant which is defined in similar terms with similar effect to the 1985 Act .
  2. The effect of an override-certificate is to make lawful a trawl through bulk-captured material obtained with a RIP certificated-warrant, searching for an entity "referable to" a person inside the UK, for purposes of national security, serious crime or economic well-being.
  3. On the face, it thus represents an immediate extension of powers beyond the 1985 Act, which constrained such searches to anti-terrorist purposes only.
  4. But what about the overlapping-warrant procedure? According to Lord Lloyd, these already permit what would now be allowed by the extension referred to above. Is it the purpose of RIP 15(3) therefore to supersede use of overlapping-warrants (which had no statutory basis in any case)?
  5. Lord Bassam's reply says that overlapping warrants are to continue, because "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".
  6. The meaning of this answer is obscure, but may be unravelled as follows:
    1. if the target is using a foreign ISP, then
    2. that ISP cannot be served with an interception warrant, but
    3. the target's communications (inside the UK) may still be picked up by GCHQ bulk-collection (for example on the undersea cable leading to the foreign ISP), and
    4. in that case, an e-mail sent by the target to a person inside the UK would still be an internal communication (see para.3) even though it was routed via a foreign ISP, and so would tend to fall outside the scope of an 8(3) warrant which is limited (in spirit) to external communications, so
    5. thus it seems correct that an overlapping warrant would still be required in this case
  7. Several problems are outstanding:
    1. Would it not be better to put overlapping-warrants on a clear statutory basis?
    2. Are overlapping warrants in fact lawful? If so, what is the solution to the cart-before-horse problem of para.11?
    3. The government will argue assuming overlapping warrants are lawful, there is actually no extension of the purposes for which trawling of internal communications may be effectively accomplished by the S.15(3) procedure. However it is important to understand the extent and scope of the ways in which overlapping warrant have been in practice used for trawling-surveillance of internal communications, because the acceptance of 15(3) would create statute-law which broadens the allowable purposes beyond anti-terrorism.
    4. It is possible that overlapping-warrants can lawfully be used for some kinds of internal trawling but not others, depending on very nice interpretations of "address", "premises", "factors", "referable to" etc. All this is totally opaque at present however, and if S.15(3) does represent either a practical or legal extension of powers, in future it will be for the Commissioner and the Commissioner alone to determine, in secret and unchallenged.
    5. These problems are compounded by the intention confirmed in Lord Bassam's reply that in future under RIP, certificated warrants may be served on ISPs (rather than telcos under IOCA, and presumably only in physically external "trunks"). If bulk-collection from ISP networks is undertaken, the captured traffic will be a completely mixed-pool of internal and external communications, which it will be impractical to separate.