Retrospective Warrants: Legal Theory?

Peter Fairbrother zenadsl6186 at
Tue Jun 17 18:14:02 BST 2014

On 17/06/14 11:35, Ian Batten wrote:

> My reading is that section 16 is only engaged by "certificated warrants", S.8(4), and that appears
> to exclude material relating to people located in the UK  S.16(2)(a).  But I confess to struggling
> with the language ("falls within this subsection so far only as it is selected to be read, looked at or listened
> to otherwise than according to a factor which" --- does the otherwise mean "other than as in the follow
> sections" or is it attached to the "listened to"?)

I'd agree that section 16 is only engaged by "certificated warrants", 
and that ss.16(2) sometimes excludes looking at material obtained under 
such a warrant which is chosen in relation to a person located in the 
UK, ss.8(5).

That material which cannot be looked at might be material selected as 
containing someone in the UK's name, or comms to/from someone in the UK 
- but they can still select which material to look at by looking for 
"bomb" or "Snowden" (but not Assange) or even "Daily Telegraph" in all 
material, and then look further at any hits they get from that search.

However ss.16(3) does introduce a new kind of _certificate_ - under 
which GCHQ can ignore ss.16(2), and look at material which *does* relate 
to people located in the UK.

A single s.16(3) certificate can only permit looking at material which 
was obtained during a limited period of time under a ss.8(4) warrant -- 
but, of course, the SoS can issue as many certificates as he likes, for 
different periods.

Perhaps more importantly, there is nothing I can see which prevents a 
single s.16(3) certificate including material (obtained under a s.8 
warrant) relating to groups of people, people of some description, or 
even just any and all people, rather than only individuals or addresses 
as under a normal domestic warrant.

-- Peter F

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