Overview
With a warrant, the intelligence service (or, as the case may be, the ministry performing executive control over a particular intelligence service) submits an application for authorization to collect data in bulk. Warrants need to describe and delimit bulk SIGINT measures based on specific criteria regarding both the form and content of the warrants that are set out in law. Warrants are a core element of accountability in intelligence governance, although they have to provide details and particularity in order to constitute an effective safeguard against overly intrusive surveillance authorities. In the SIGINT world, warrants might therefore be tied to classes of individuals or activities rather than specific persons.
Although terminology is tricky and warrants for untargeted collection or bulk surveillance are not a feature of some legal systems, they are included here as a useful comparative category. Warrants can be a powerful tool to specify the minimization rules, the authorization requirements, and the purpose limitations of a measure. The more specificity a bulk warrant can provide, the better its protective function. Warrants may also be used to exclude certain data categories from collection and limit the use of the data collected.
It is important to note that many such limits and conditions could appear in a law governing intelligence surveillance. The major advantage of warrants, though, is the active involvement of an independent judicial authorization body before the collection begins (see phase 3), which allows for case-by-case controls. Ideally, a clear legal mandate is combined with obligatory, independent, ex-ante controls of all applications for bulk data collection.
Relevant Aspects
- It is common for various intelligence laws to include a list of criteria that each application for a SIGINT measure needs to address. Ideally, these include the:
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- – purpose(s) of the requested activity;
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- – alternative means available;
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- – private companies that may be compelled to cooperate;
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- – service or services that will be instructed to perform the activity;
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- – time frame for assessment and authorization of the warrant, including for emergency situations;
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- – geographical zones or organizations or groups of people that a particular measure is directed at;
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- – technical device or facility to be tapped;
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- – exploratory monitoring or preliminary aptitude tests that have been conducted in preparation;
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- – type(s) of data to be retrieved;
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- – search terms or selectors used (i.e., a range of IP addresses);
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- – types of data use and forms of data exploitation to be performed on the data;
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- – duration of the warrant and rules for renewal;
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- – additional background materials to be submitted with the warrant.