No doubt you have seen this weekend’s brouhaha about GCHQ and the Guardian’s allegation that it has intercepted communications on a gargantuan scale. Well I think Mr Hague can clear everything up with a public statement as to why he thinks such interception is proportionate without any nonsense such as: "I can't say anything because that could jeopardise national security”.
Why? Because it is very likely that he has signed (or authorised) a warrant phrased in very general terms that allows such interception; indeed as he has been in office for three years since 2010, he has signed (or authorised) this particular warrant every six months. One assumes therefore, he knows what it contains.
I should add the interception, if tested in Court, is likely to be lawful under the Regulation of Investigatory Powers Act 2000 (RIPA). This raises the issue as to whether Ministers and Parliament are content for it to remain so (as it depends on the meaning of "external communication"). Another reason for a public statement perhaps.
Under Section 5 of RIPA, the relevant SoS (e.g. Home Secretary, Foreign Secretary) can issue a warrant if an interception of communications is “necessary in the interests of national security” or “necessary for the purpose of preventing or detecting serious crime”. Under S.5(2) the SoS has to attest on the warrant, the fact that the conduct being authorised is "proportionate".
RIPA also allows that such an interception warrant can make lawful “conduct for obtaining related communications data”. This means that Mr Hague’s warrant, assuming it authorised the current GCHQ interception, could also have authorised the collection of communications data on an equally gargantuan scale.
Section 8 of RIPA says that, in general, “An interception warrant must name or describe either (a) one person as the interception subject; or (b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place”. This warrant has also “to comprise one or more schedules setting out the addresses, numbers, apparatus or other factors, or combination of factors that are to be used for identifying the communications that may be or are to be intercepted”. Note that such a warrant is very detailed.
However Section 8(4) then says that a warrant does not need to specify any of the above details if the warrant relates to “the interception of external communications in the course of their transmission by means of a telecommunication system”.
In this case the warrant merely has to provide “the descriptions of intercepted material the examination of which he considers necessary”. In other words, Mr Hague’s warrant in this case is very general, and by implication, NOT targeted at any specific individual or premises. Indeed, I suspect it could be so general that it takes the form or National Security Certificates under S.28 of the DPA – many of which are published (see references).
However, under RIPA, an “external communication” means “a communication sent or received outside the British Islands”. So, for example, does this include an Facebook message leaving one UK resident to another resident in the UK via Facebook’s systems in Eire or an email between two “Gmail” accounts via the server in the USA?
If this is the case, then many “external communications” between UK citizens are “external” merely because the server that deals with the communication is not in the UK. Mr Hague should clarify this confusion very quickly; any explanation has nothing to do with national security.
In addition Section 16(3A) of RIPA states that a warrant covering the Section 8(4) “external communications” activities above is valid for 6 months in the case of national security and 3 months otherwise.
In other words, Mr. Hague has repeated his signature on this particular warrant on a twice yearly basis attesting the interception is proportionate; he is therefore in a good position to explain why.
References
Mr Hague (as have all other previous incumbents) claim he takes his warrant signing duties very carefully. I did a blog “Home Secretary spends 90 minutes per day with interception warrants?” which should interest readers. http://amberhawk.typepad.com/amberhawk/2009/09/home-secretary-spends-90-minutes-per-day-with-interception-warrants.html
Example of S.28 National Security Certificate in the public domain: https://www.gov.uk/government/publications/section-28-data-protection-act-dpa-certificate-regarding-the-intelligence-and-security-committee-isc
The TfL National Security Certificate is on http://www.statewatch.org/news/2007/aug/uk-london-tfl-exemption-certificate.pdf
My take: http://ohrh.law.ox.ac.uk/?p=2056
text begins
Internet surveillance in English law
For the past fortnight, the media has been full of revelations about the surveillance practices of the US National Security Agency (NSA), a shadowy body responsible for communications intelligence for the US government. UK interest has focused on whether NSA has been sharing intelligence on British residents with its UK equivalent, Government Communications Headquarters (GCHQ). But we now know GCHQ has been engaging in similarly broad, global communications surveillance. What do we know of the legal framework that governs these newly-revealed activities
Posted by: Ian Brown | 22/06/2013 at 09:02 PM