The Investigatory Powers Commissioner's Office, the body tasked with watching UK spooks, has revealed how it will decide whether to approve snooping warrants authorised by government.
The advisory notice (PDF) published yesterday will act as a guide for IPCO's 15 judicial commissioners – working and retired judges appointed to help regulate the intrusive spying powers granted to government under the Investigatory Powers Act 2016.
Previously, politicians had sole say over what investigatory powers the spy agencies could use.
But in a bid to increase independent oversight – and convince detractors that there are enough safeguards in place – the government has introduced a new "double lock" mechanism.
The judges are asked to check and countersign the government-approved warrants for the interception of communications, retention of data and examination of information. The aim is to ensure it only happens when it is both necessary and proportionate.
The commissioners can ask for further information from government and – at least in theory – have the power to refuse requests for warrants. However, requests deemed "urgent" can still be signed off without the commissioners' oversight.
Brit spooks 'kept oversight bodies in the dark' over data sharingREAD MORE
It's not just the process that's new; IPCO was created in September to replace three separate bodies: the offices of the Intelligence Services Commissioner (ISCom), the Interception of Communications Commissioner (IOCCO) and the Surveillance Commissioners (OSC).
Observers hope that the new regulator will have more teeth and technical expertise than its predecessors, and the body is attempting to be more transparent about its work – the publication of this document is part of that.
"It is extremely important that IPCO is transparent about the application of its powers in areas which will often necessarily be kept secret," commissioner Adrian Fulford said.
"This notice shows that commissioners will be applying a rigorous standard of oversight to the use of intrusive investigatory powers."
The office said the notice was being published so anyone who might be affected would have a "clear understanding" of how the commissioners carry out their role in the double lock mechanism.
Necessary and proportionate
The notice indicates the amount of scrutiny the commissioners will be expected to apply in their decision-making and – although IPCO emphasised that it isn't binding – the aim is to encourage a consistent approach to the authorisation of warrants.
The main consideration is to ensure warrants "satisfy the requirements of necessity and proportionality" – including that the warrant is in accordance with the law.
But the commissioners will also ask whether what the warrant seeks could be achieved through less intrusive means, as well as considering the public interest and the protection of privacy.
They are told to consider human and fundamental rights, the case law of domestic courts and possibly international laws where necessary.
It also rejects the legal term for a simple rationality review – known as Wednesbury unreasonableness – a move praised by former independent terrorism reviewer David Anderson on Twitter.
However, IPCO said that in some situations – such as determining what counts as legitimate ways to achieve foreign policy or national security priorities – the commissioners "will afford a very wide margin of judgment to the secretary of state".
Commissioners will "always give full consideration to every application", IPCO said, but the precise level will depend on individual applications.
For instance, those that raise "novel or controversial techniques... will require a much greater level of scrutiny than others".
But, it added, "most applications are of a routine or repeat nature" so won't need as much consideration or detailed information in the first place. "Such applications will be capable of being considered within short timescales."
Process of approval
When a warrant comes into IPCO for approval, the review team will allocate the case to one of the commissioners.
They will be handed a bundle of documents known as a submission pack, containing the warrant application, which should say why the proposed activity is necessary and proportionate, as well as any supporting documents that were considered by the secretary of state during their decision-making.
There will also be an indication of how long the commissioner has to decide on the warrant, although IPCO said this is "for guidance only" and that the commissioner could notify the review team if they needed additional time.
They will also be able to ask for more information if they deem it necessary, which might involve the IPCO review team asking the warrant granting department for the answers.
Revealed: UK.gov's ‘third direction’ to keep tabs on spies’ potentially criminal activitiesREAD MORE
It's also possible that the commissioners will be allowed to make their decisions public "subject to any statutory limitations and necessary redactions" – this decision will be made with IPCO execs and the secretary of state.
If a commissioner refuses to approve a warrant, their reasons will be sent to the department that granted it. If the secretary of state asks for a decision to be reconsidered, the document pack and written decision will be sent to Fulford in his role as investigatory powers commissioner for reconsideration.
IPCO and the commissioners also have access to the technical advisory panel, which is to be chaired by renowned statistician Bernard Silverman.
The full membership of the panel hasn't been announced yet, but it is understood that the group will cover a range of areas. It is expected they will be on hand in working hours to offer advice, but will also offer training or guidance independently of specific warrants and write up briefing notes on more complex areas.
IPCO said that the notice for approvals would be kept under continuous review and that it is likely it will be "amended over time once we have experience of the new warrantry regime and we have received feedback". ®