Application Process

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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.

 

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Nerd Corner

  • A coalition of civil society, industry, and international experts has formulated a list of 13 principles to meet the human rights obligations in relation to communications surveillance: Necessary and Proportionate Coalition. 2014. “Necessary & Proportionate. International Principles on the Application of Human Rights to Communications Surveillance.” May 2014. http://necessaryandproportionate.org/principles.

 

 

 

 

 

 

 

 

  • The following – non-comprehensive – table provides examples of different types of warrants that exist in different jurisdictions. The types of bulk warrants are illustrated with reference to only one legal regime, but similar provisions may exist in other intelligence laws as well.
    Type of warrant Example provision
    Bulk interception United Kingdom: “Bulk Interception Warrants”

    (Section 136 (1) IP Act)

    Bulk acquisition United Kingdom: “Bulk Acquisition Warrants”

    (Section 158 (5) IP Act)

    Bulk personal datasets United Kingdom: “Bulk Personal Datasets Warrants”

    (Section 199 (1) IP Act)

    Data examination France: “Data Exploitation Warrant”

    (Article L. 854-2.-III. of Law No. 2015-1556) In French original “exploitation de communications […] interceptée.” A similar type of examination warrant is, e.g., required in UK law: “An intelligence service may not exercise a power to examine a bulk personal dataset retained by it unless the examination is authorised by a warrant under this Part” (Section 200 (2) United Kingdom, Investigatory Powers Act 2016). In other cases, the conduct authorized by a bulk warrant includes safeguards on selection for examination and disclosure.

    Retention United Kingdom: “Retention notice” that orders an operator to retain communications data

    (Section 87 (1) IP Act)

    Metadata analysis France: The prime minister has the power to authorize, on request, the “Exploitation of non-individualized connection data.” In French original “l’exploitation non individualisée des donnés de connexion interceptée.”

    (Article L. 854-2.-II. of Law No. 2015-1556)

    Operational support The Netherlands: The Dutch services need to obtain operational support permission, in case no formal cooperation agreement exists, as if they were applying the powers themselves. “Granted permission then makes exercise of the special powers abroad as covered by Dutch law” (Article 90 Intelligence and Security Services Act 2017).

     

    A similar type of warrant is also foreseen in New Zealand’s intelligence law: “An intelligence and security agency may not, without an authorisation, request a government of, or an entity in, another jurisdiction to carry out an activity that would be an unlawful activity if it were carried out by the intelligence and security agency” (Intelligence and Security Act 2017 (2017/10) Section 49 1A).

    Testing New Zealand: “A testing warrant authorises an intelligence and security agency to carry out an otherwise unlawful activity that is necessary to test, maintain, or develop the capability of the agency in relation to the performance of its statutory functions.”

     

    Training New Zealand: “A training warrant authorises an intelligence and security agency to carry out an otherwise unlawful activity that is necessary to train employees in relation to the performance of the agency’s statutory functions.”

    (Intelligence and Security Act 2017 (2017/10) Section 91B)

     

     

    Selected examples of bulk warrant durations

    The following table offers examples for the duration of warrants for foreign communications data collection in selected countries. In principle, the duration of a warrant should be determined with a view to the essential criteria for issuing the bulk warrant, for example the operational purpose for collecting the data in bulk. A shorter duration is called for if the relevant conditions underlying this operational purpose are likely to change within a short time period. If the conditions are stable over longer time periods, a longer warrant duration could become necessary. Introducing such normative guidelines for determining the duration of warrants could provide even greater flexibility for issuing warrants and lead to durations being determined by what is factually needed.

     

    Country Duration time Provision
    France 12 months, renewable for 12 months Article L. 854-2.-II. of Law No. 2015-1556 on international surveillance
    The Netherlands 3 months, renewable for 3 months Section 29 Intelligence and Security Services Act 2017
    United Kingdom 6 months, renewable for 6 months Section 143 (1)(a) IP Act
    Switzerland 6 months, renewable for max. 3 months at a time Section 41 (3) ND Act