Briefing Note - Section 15(3) THE
BY THE LORD COPE OF
BERKELEY and THE LORD McNALLY
Page 17, line 19, after ("is") insert
("in an external communication and is")
Bassam's written reply
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.
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…
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).
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.
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).
IOCA contained an exception that permitted trawling for an entity inside
the UK solely for anti-terrorist purposes.
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.
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 :
examination of any such internal material; and
for purposes broader than anti-terrorism (national security, serious
crime, economic well-being)
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
is not clear whether an overlapping warrant is necessary for (a) above -
although in spirit it would seem so.
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.
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
The RIP Bill and Section 15.3
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 .
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.
the face, it thus represents an immediate extension of powers beyond the
1985 Act, which constrained such searches to anti-terrorist purposes only.
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)?
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
meaning of this answer is obscure, but may be unravelled as follows:
the target is using a foreign ISP, then
ISP cannot be served with an interception warrant, but
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
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,
it seems correct that an overlapping warrant would still be required in
problems are outstanding:
it not be better to put overlapping-warrants on a clear statutory basis?
overlapping warrants in fact lawful? If so, what is the solution to the
cart-before-horse problem of para.11?
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
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
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