Fifteen secret warrants in force granting bulk data collection in UK

This article titled “Fifteen secret warrants in force granting bulk data collection in UK” was written by Owen Bowcott Legal affairs correspondent, for theguardian.com on Thursday 7th July 2016 13.06 UTC

There are 15 secret “directions” in force under the Telecommunications Act enabling the intelligence services to collect bulk data about online and phone traffic, a surveillance watchdog has revealed.

The number of orders imposed on telephone and internet companies under section 94 of the 1984 legislation has been published for the first time by the interception of communications commissioner’s office (IOCCO). The firms involved have not been identified.

A further eight directions have been made to provide for emergency services and to protect security personnel, according to a report on the operation of the rarely disclosed powers.

Parliament does not have to be notified of section 94 directions and until last year they were not subject to formal oversight from any watchdog. Their operation will be reorganised under the investigatory powers bill although the IOCCO is pressing for stronger oversight of bulk communications data collection.

The 15 directions, or warrants, relate to traffic data, subscriber and service user information acquired by the government’s monitoring agency, GCHQ, and the national security service, MI5. They do not include the content of calls or emails.

Any secretary of state can sign a secret section 94 direction. Their use was so poorly recorded within Whitehall, the IOCCO said, that it was difficult to be sure it could account for every one ever issued.

Sir Stanley Burnton, the commissioner, said: “The review of section 94 has been extremely challenging. Our report highlights clearly the difficulties when statutes are operated in secret and without codified statutory procedures.

“We make extensive recommendations that the intelligence and law enforcement agencies must implement to clarify and bring consistency to their procedures, to remedy the lack of record-keeping requirements and to ensure that we can oversee properly how section 94 directions are given and used.”

Telephone and internet service companies have to comply with the orders and cannot reveal their existence. Directions are not time limited.

The report notes: “It is not an exaggeration to say that the lack of codified procedures made it challenging for us to piece together and determine historically what section 94 notices had been given, by whom and when, which ones had been modified and whether they were still extant or not.”

There are other section 94 orders that do not fall within the scope of the watchdog, including some relating to Ofcom and the Department for Business, Innovation and Skills.

The report shows that some service providers subject to bulk collection orders were worried about publicity and whether information would be shared with foreign intelligence agencies.

Some of the public electronic communications networks (PECNs), the watchdog said, raised concerns “relating to reputational [and commercial] risks”. Others worried about whether bulk communications data they had disclosed had been shared with agencies in other jurisdictions. “In one case, a PECN had asked the agency to ensure that this did not happen and we were able to confirm that their data had not been shared with another jurisdiction,” the report says.

It revealed that in 2015 GCHQ “identified 141,251 communications addresses or identifiers of interest from communications data acquired in bulk pursuant to section 94 directions which directly contributed to an intelligence report”.

In the same year, MI5 “made 20,042 applications to access communications data obtained pursuant to section 94 directions. These applications related to 122,579 items of communications data.”

Millie Graham Wood, a legal officer at the campaign group Privacy International, said the report was “a damning verdict of the government and intelligence agencies’ use of very vague powers as a justification of mass surveillance of innocent people”.

She said it was “shocking and unacceptable” that there had never been a public or parliamentary debate about the use of the powers, and that rigorous oversight was vital. .

“Section 94 is tucked away in the ‘miscellaneous’ provisions of the 1984 Telecommunications Act and provides a very broad power to any secretary of state to give secret directions to any provider of a public electronic communications network. Communications providers can be instructed ‘to do, or not to do’ anything specified and the direction does not automatically expire.

“The agencies have used this vague power to demand our internet and telephone network providers hand over huge swaths of our personal data. The intelligence agencies tell us that they need this data to conduct targeted searches, however, in 2015 GCHQ and MI5 searched bulk communications data databases for 263,830 communication addresses or identifiers. This is hardly looking for the needle in the haystack. We need robust oversight and a transparent authorisation process for access to data.”

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