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UK-ISC-Masssurveillance Intelligence and Security Committee of Parliament Privacy and Security: A modern and transparent legal framework Intelligence and Security Committee of Parliament Privacy and Security: A modern and transparent legal framework Presented to Parliament pursuant to Section 3 of the Justice and Security Act 2013 Ordered by the House of Commons to be printed on 12 March 2015 HC 1075 © Crown copyright 2015 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/government/publications Any enquiries regarding this publication should be sent to us at [email protected] Print ISBN 9781474116237 Web ISBN 9781474116244 ID 10031502 03/15 47945 19585 Printed on paper containing 75% recycled fibre content minimum Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office THE INTELLIGENCE AND SECURITY COMMITTEE OF PARLIAMENT The Rt. Hon. Hazel Blears, MP Dr Julian Lewis, MP The Rt. Hon. Lord Butler KG GCB CVO Ms Fiona Mactaggart, MP The Rt. Hon. Sir Menzies Campbell CH CBE QC, MP The Most Hon. The Marquess of Mr Mark Field, MP Lothian QC PC The Rt. Hon. George Howarth, MP The Rt. Hon. Sir Malcolm Rifkind, MP The Intelligence and Security Committee of Parliament (ISC) is a statutory committee of Parliament that has responsibility for oversight of the UK intelligence community. The Committee was originally established by the Intelligence Services Act 1994, and has recently been reformed, and its powers reinforced, by the Justice and Security Act 2013. The Committee oversees the intelligence and security activities of the UK, including the policies, expenditure, administration and operations1 of the Security Service (MI5), the Secret Intelligence Service (SIS) and the Government Communications Headquarters (GCHQ). The Committee also scrutinises the work of other parts of the UK intelligence community, including the Joint Intelligence Organisation and the National Security Secretariat in the Cabinet Office; Defence Intelligence in the Ministry of Defence; and the Office for Security and Counter-Terrorism in the Home Office. 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. The Committee produces an Annual Report on the discharge of its functions. The Committee may also produce Reports on specific investigations. Prior to the Committee publishing its Reports, sensitive material that would damage national security is blanked out (‘redacted’). This is indicated by *** in the text. The intelligence and security Agencies may request the redaction of material in the Report if its publication would damage their work, for example by revealing their targets, methods, sources or operational capabilities. The Committee considers these requests for redaction carefully. The Agencies have to demonstrate clearly how publication of the material in question would be damaging before the Committee agrees to redact it. The Committee aims to ensure that only the minimum of text is redacted from the Report. The Committee believes that it is important that Parliament and the public should be able to see where information had to be redacted. This means that the published Report is the same as the classified version sent to the Prime Minister (albeit with redactions). The Committee also prepares from time to time wholly confidential reports which it submits to the Prime Minister. 1 Subject to the criteria set out in Section 2 of the Justice and Security Act 2013. CONTENTS KEY FINDINGS ......................................................................................................1 OVERVIEW ............................................................................................................3 1. INTRODUCTION ...............................................................................................9 2. THE AGENCIES’ USE OF INTRUSIVE CAPABILITIES ............................... 13 The Human Rights Act 1998 ................................................................................ 14 The HRA ‘triple test’ ............................................................................................ 15 3. TARGETED INTERCEPTION OF COMMUNICATIONS .............................. 17 How do the Agencies carry out Targeted Interception of Communications in the UK? ........................................................................................................... 17 Authorisation of Targeted Interception of Communications .................................... 18 What does an 8(1) warrant look like? .................................................................... 19 Thematic warrants ............................................................................................... 21 Collateral intrusion .............................................................................................. 23 4. ‘BULK’ INTERCEPTION: CAPABILITY ....................................................... 25 Choosing which communications links to access ................................................... 27 Selection of communications to be collected ......................................................... 28 Deciding which of the collected communications to examine or read ...................... 30 Does bulk interception work? ............................................................................... 32 5. ‘BULK’ INTERCEPTION: LEGAL AUTHORITY AND PRIVACY CONCERNS ...................................................................................................... 35 Objections to collection in principle ...................................................................... 35 Legal framework: 8(4) warrants and the Certificate ................................................ 37 Legal framework: ‘external’ and ‘internal’ communications ................................... 39 Storage and security ............................................................................................. 44 Oversight and audit .............................................................................................. 45 6. COMMUNICATIONS DATA ............................................................................ 47 Why do the Agencies need access to CD? ............................................................. 47 What categories of CD do the Agencies collect? .................................................... 48 How do the Agencies collect CD? ......................................................................... 48 Key issues ........................................................................................................... 50 7. BULK PERSONAL DATASETS........................................................................ 55 Authorisation ....................................................................................................... 56 Internal controls ................................................................................................... 57 8. OTHER AGENCY CAPABILITIES .................................................................. 61 a) Surveillance ..................................................................................................... 61 b) Interference with Property and Wireless Telegraphy ........................................... 63 c) Reading Encrypted Communications................................................................. 67 d) Covert Human Intelligence Sources .................................................................. 69 9. AUTHORISATIONS AND ACCOUNTABILITY .............................................. 73 Authorisation: Ministers or judges? ...................................................................... 73 Authorisation: official level .................................................................................. 76 Retrospective audit: the Commissioners ................................................................ 77 Complaints: the Investigatory Powers Tribunal ...................................................... 78 Parliamentary oversight ........................................................................................ 80 10. THE LEGISLATIVE FRAMEWORK ............................................................ 83 a) Interaction between legislation .......................................................................... 83 b) Class Authorisations ........................................................................................ 87 c) Exchanging information with overseas partners ................................................. 90
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