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Publication - Guidance

Equipment interference code of practice

Published: 20 Dec 2017

Code of practice issued under section 24 of the Regulation of Investigatory Powers (Scotland) Act 2000.

51 page PDF

470.5kB

51 page PDF

470.5kB

Contents
Equipment interference code of practice
3 Targeted equipment interference warrants

51 page PDF

470.5kB

3 Targeted equipment interference warrants

Overview

3.1 Responsibility for issuing targeted equipment interference warrants and the purposes for which warrants may be issued vary depending on the relevant agency applying for the warrant. Targeted equipment interference warrants for Police Scotland and the PIRC are issued by the Chief Constable and the Commissioner, respectively. References to the law enforcement chief are references to the Chief Constable in relation to the Police Service of Scotland and the Commissioner in relation to the Police Investigations and Review Commissioner.

Targeted equipment interference warrants

3.2 A targeted equipment interference warrant described in section 99(2) of the Act authorises or requires the person to whom it is addressed to secure interference with any equipment to obtain communications, equipment data or other information. Such a warrant will also authorise any conduct which is necessary to undertake to do what is expressly authorised or required by the warrant (see section 99(5)(a) of the Act).

3.3 Except where the law enforcement chief considers that there is an urgent need to issue the warrant, the decision to issue the warrant must be approved by a Judicial Commissioner.

3.4 When targeted equipment interference warrants are issued, the law enforcement chief can address the warrant to the applicant or to another person who is an appropriate law enforcement officer in relation to him or her. The person to whom the warrant is addressed must be named or described in the warrant. Such a person must be an accountable individual but can be described by their relevant post within the relevant agency. This ensures the law enforcement chief can address the warrant to the most applicable officer who is accountable for giving effect to the warrant.

3.5 Once issued a copy of the warrant may then be served on any person who may be able to provide assistance in giving effect to that warrant.

Subject-matter and scope of targeted equipment interference warrants

3.6 Section 101 of the Act sets out the subject-matter of targeted equipment interference warrants and constrains what equipment can be described in the warrant; this section therefore sets the "scope" of a warrant. The subject-matter of warrants may be targeted or thematic.

Relevant agencies

3.7 Applications for warrants may be made by a relevant agency on the grounds of preventing or detecting serious crime. The Police Service of Scotland may also use targeted equipment interference for the purpose of preventing death or injury or any damage to a person's physical or mental health, or of mitigating any injury or damage to a person's physical or mental health [7] .

3.8 Targeted equipment interference warrants for the relevant agencies must be issued by a law enforcement chief to their relevant law enforcement officer (see section 106 and schedule 6 of the Act, and the Annex of this code).

3.9 The statutory purposes for which warrants may be issued reflect the functions of the relevant agency carrying out the targeted equipment interference. Each of the relevant agencies must conduct targeted equipment interference operations in accordance with their statutory or other functions, and the provisions of the Act. So, whilst the Police Investigations and Review Commissioner can issue a warrant where the purpose is the prevention and detection of serious crime, this is limited in that this condition can only be satisfied if the offence, or all of the offences, to which the serious crime relates are being investigated under section 33A(b)(i) of the Police, Public Order and Criminal Justice (Scotland) Act 2006.

Necessity and proportionality

3.10 The Act provides that the person issuing a targeted equipment interference warrant must consider that the warrant is necessary for one or more statutory purposes.

3.11 For all targeted equipment interference warrants the law enforcement chief must also believe that the targeted equipment interference is proportionate to what is sought to be achieved by that conduct. Any assessment of proportionality involves balancing the seriousness of the intrusion into the privacy or property of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative, operational or capability terms. The warrant will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that the proposed conduct relates to serious crime may not alone render the most intrusive actions proportionate. No interference should be considered proportionate if the material which is sought could reasonably be obtained by other less intrusive means.

3.12 The following elements of proportionality should therefore be considered:

  • balancing the size and scope of the interference against what is sought to be achieved;
  • explaining how and why the methods to be adopted will minimise the risk of intrusion on the subject and others;
  • whether the activity is an appropriate use of the legislation;
  • whether there are any implications of the conduct authorised by the warrant for the privacy and security of other users of equipment and systems, including the internet, and an explanation of why (if relevant) it is nevertheless proportionate to proceed with the operation; and
  • evidencing, as far as reasonably practicable, what other methods have been considered and why they were not implemented.

3.13 In the case of targeted equipment interference warrants issued under sections 101(1)(g) and (h) of the Act for the purposes of testing and training, proportionality should be considered by assessing the potential for, and seriousness of, intrusion into any affected person's privacy against the benefits of carrying out the proposed testing or training exercise.

3.14 It is important that all those involved in undertaking targeted equipment interference activity under the Act are fully aware of the extent and limits of the action that may be taken under the warrant in question.

Targeted equipment interference warrants relating to a person, organisation or particular location

3.15 In many cases, targeted equipment interference warrants will relate to subjects as set out in section 101(1)(a) and (d) of the Act. Section 101(1)(a) and (d) warrants are sometimes referred to as "non-thematic" warrants and may relate to one or a combination of:

  • equipment belonging to, used by or in the possession of a particular person;
  • equipment belonging to, used by or in the possession of a particular organisation; or
  • equipment in a particular location.

3.16 A "person" for these purposes may be an individual but, as defined in the Interpretation Act 1978, a person also includes a body of persons corporate or unincorporate. An "organisation" may additionally include entities that are not legal persons. This means, for example, that a warrant may relate to a particular company. In such a case, the company is the "person" to which the warrant relates (e.g. the focus of the warrant is the company itself) and section 115(3) of the Act will not impose an obligation to name individual employees or workers in the warrant, although the warrant must describe the type of equipment to be interfered with which is likely to include equipment used by those persons. Similarly, in the case of an unincorporated body such as a partnership, a warrant may refer just to the partnership, but will authorise the interference with equipment used by members of that partnership.

3.17 In practice, a relevant agency may need to build intelligence about the legal person or organisation itself, rather than the individuals who are directors, employees or members of the company or organisation. In such circumstances, it may be more appropriate to obtain a targeted equipment interference warrant against e.g. a company, as opposed to individuals working for it. However, in certain circumstances, such as where a warrant is against a large organisation, the risk of collateral intrusion may be higher than a warrant targeting a small subset of individuals working for that organisation. As such, the relevant agency will need to justify why it is necessary and proportionate to target the company itself, rather than a limited number of individuals working for that company. The Act does not require the relevant agency to name or describe individuals within legal persons or organisations in the warrant; in many cases the identities of these individuals will be irrelevant to the intelligence being sought and their identities will not be known (or could only be ascertained by further interferences with privacy). Individual names are not required to ascertain the scope of the warrant or the interference with privacy authorised.

3.18 In the case of a particular location, this may relate to interfering with equipment in a building or a defined geographical area where it is not technically feasible to identify individual users of the equipment. Such a geographical area should be clearly defined in the application and that definition will require to be considered against the backdrop of necessity and proportionality. Whilst in this instance, activities of individuals may be of intelligence interest, it is the information gained from the equipment described in the targeted equipment interference warrant in which the relevant agencies are interested.

Format of targeted equipment interference warrants

3.19 An application for a targeted equipment interference warrant should contain the following information:

  • a provision stating that it is a targeted equipment interference warrant;
  • the background to the operation or investigation in the context of which the warrant is sought and what the operation or investigation is expected to deliver;
  • the subject-matter(s) of the warrant, to include the following information dependent on the subject-matter(s):
    • equipment belonging to, used by or in the possession of a particular person or organisation must name or describe that person or organisation;
    • equipment belonging to, used by or in the possession of a group of persons who share a common purpose or who carry on, or may carry on a particular activity, must name or describe as many of the persons as it is reasonably practicable to name or describe;
    • equipment used by or in the possession of more than one person or organisation where the warrant is for the purposes of a single investigation or operation, must describe the nature of the investigation or operation and name or describe as many of the persons or organisations as it is reasonably practicable to name or describe;
    • equipment in a particular location must include a description of the location;
    • equipment in more than one location where the interference is for the purpose of a single investigation or operation must describe the nature of the investigation or operation and describe as many of the locations as it is reasonably practicable to describe;
    • equipment which is being, or may be, used for the purposes of a particular activity or activities of a particular description must describe the activity or activities;
    • equipment which is being, or may be, used for testing and training purposes must describe the nature of the testing, maintenance or development of capabilities and/or a description of the training.
  • a description of any communications, equipment data or other information that is to be (or may be) obtained;
  • an outline of how obtaining the material will benefit the investigation or operation. The relevance of the material being sought should be explained along with any considerations which might be relevant to the consideration of the application;
  • sufficient information to describe the type of equipment which will be affected by the interference;
  • a description of the conduct to be authorised as well as any conduct it is necessary to undertake in order to carry out what is expressly authorised or required by the warrant, including whether communications or other information is to be obtained by surveillance;
  • an assessment of the consequences and potential consequences of that conduct, including any risk of compromising the security of any equipment directly or indirectly involved with the interference and, in particular, whether this may enable further intrusion into privacy or impact upon Critical National Infrastructure;
  • in the case of thematic warrants, an assessment of whether it will be reasonably practicable to modify the warrant when the identities of the subjects become known and, if so, when such modifications are expected to occur. Where the warrant applicant believes it will not be reasonably practicable to modify the warrant as the identities of individuals, organisations or relevant locations become apparent they should set out the reasons for this;
  • the nature and extent of the proposed interference;
  • an explanation of why the equipment interference is considered to be necessary on one of the grounds set out in Part 5 of the Act;
  • consideration of why the conduct to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct including, where appropriate, an explanation why less intrusive alternatives have not been or would not be as effective;
  • the factors considered when determining if it is proportionate for the warrant to be issued to the appropriate law enforcement officer (see paragraph 3.11);
  • what measures will be put in place to ensure proportionality is maintained (for example, the methods by which the material collected will be processed to reduce collateral intrusion (e.g. through filtering or processing the material before any of it is examined), and these can be imposed as conditions on the granting of the warrant);
  • consideration of any collateral intrusion, including the identity of individuals and/or categories of people, where known, who are likely to be affected, and why that intrusion is justified in the circumstances;
  • whether the conduct is likely or intended to result in the obtaining of privileged or other confidential material and, if so, what protections it is proposed will be applied to the handling of the information so obtained;
  • where an application is urgent, the supporting justification for that urgency;
  • in case of a renewal, the results obtained so far, or a full explanation of the failure to obtain any results, and an explanation of the collateral intrusion that has arisen to date and how this has been managed;
  • an assurance that all material obtained will be kept for no longer than necessary and handled in accordance with the safeguards required by section 129 of the Act and chapter 5 of this code.

3.20 Prior to submission to the person with responsibility for issuing the targeted equipment interference warrant, each application should be subject to a review within the relevant agency seeking the warrant. This review will consider whether the application is for a purpose specified in the Act and whether the targeted equipment interference proposed is both necessary and proportionate.

Authorisation of targeted equipment interference warrants

3.21 The person responsible for issuing the targeted equipment interference warrant may only issue a warrant under Part 5 of the Act if the person considers that the following tests are met:

The warrant is necessary for the purpose of preventing or detecting serious crime or, in the case of the Police Service of Scotland, for the purpose of preventing death or injury or any damage to a person's physical or mental health, or of mitigating any injury or damage to a person's physical or mental health.

The conduct authorised by the warrant is proportionate to what it seeks to achieve. In considering necessity and proportionality, the law enforcement chief must take into account whether the information sought could reasonably be obtained by other means.

There are satisfactory safeguards in place. The law enforcement chief must consider that satisfactory arrangements are made for the purposes of the safeguards in section 129 of the Act. These safeguards relate to the copying, dissemination and retention of material obtained by equipment interference and are explained in chapter 5 of this code.

Judicial Commissioner approval. Except in an urgent case, the law enforcement chief may not issue a warrant unless and until the decision to issue the warrant has been approved by a Judicial Commissioner. Section 108 of the Act sets out that the Judicial Commissioner must review the conclusions that have been reached as to whether the warrant is necessary on one or more of the grounds and whether the conduct that would be authorised is proportionate to what is sought to be achieved.

3.22 In addition, the persons responsible for issuing the warrant must consider the general duties in relation to privacy as detailed in section 2 of the Act, including the requirements of the Human Rights Act 1998.

Authorisation of a targeted equipment interference warrant: appropriate delegates

3.23 Where it is not reasonably practicable for a law enforcement chief to issue a warrant an appropriate delegate (listed in Schedule 6 of the Act) may exercise the power to issue the warrant instead in an urgent situation. In these circumstances the appropriate delegate is not signing a warrant on behalf of the relevant law enforcement chief but is issuing the warrant itself. As such, where an appropriate delegate exercises the power to issue a warrant they must follow the same process that would otherwise be followed by a law enforcement chief in an urgent situation.

Authorisation of targeted equipment interference techniques

3.24 Law enforcement chiefs may only issue a targeted equipment interference warrant if they consider that it is proportionate for the warrant to be issued to their appropriate law enforcement officer. In addition to the factors set out in paragraph 3.12 above, in considering whether it is proportionate, the law enforcement chief should consider the full context of the application, including:

  • whether the appropriate law enforcement officer, or those effecting the warrant on his behalf, have the capabilities to conduct the equipment interference techniques sought under the warrant;
  • whether the equipment interference technique that is sought under the warrant been adequately tested for the proposed use;
  • whether the appropriate law enforcement officer, or those effecting the warrant on his behalf, have sufficient training and experience in conducting the equipment interference techniques sought under the warrant;
  • if the targeted equipment interference technique is sensitive, whether there are sufficient safeguards in place to ensure that the technique is protected; and
  • whether it would be more proportionate for another law enforcement agency to obtain the warrant on their behalf.

Collateral intrusion

3.25 Before authorising applications for targeted equipment interference warrants, the person issuing the warrant should also take into account the risk of obtaining communications, equipment data or other information about persons who are not the targets of the equipment interference activity (collateral intrusion). Particular consideration should be given in cases where collateral intrusion may result in religious, medical, journalistic or legally privileged material being involved, or where communications between a member of a relevant legislature [8] and another person on constituency business may be involved.

3.26 Measures should be taken, wherever practicable, to avoid or minimise unnecessary intrusion into the privacy of those who are not the intended subjects of the targeted equipment interference activity. Where such collateral intrusion is unavoidable, the activities may still be authorised, provided this intrusion is considered proportionate to what is sought to be achieved. The same proportionality tests apply to the likelihood of collateral intrusion as to intrusion into the privacy of the intended subject of the targeted equipment interference activity.

3.27 All targeted equipment interference warrant applications should therefore include an assessment of the risk of collateral intrusion and details of any measures taken to limit this, to enable the person authorising the warrant to fully consider the proportionality of the proposed actions.

Example: A relevant agency seeks to conduct targeted equipment interference against a device used by a subject, T, on the grounds that this is necessary and proportionate for the purpose of preventing or detecting serious crime. It is assessed that the operation will unavoidably result in the obtaining of some information about members of T's family, who are also users of his device, and who are not the intended subjects of the targeted equipment interference. The person issuing the warrant should consider the proportionality of this collateral intrusion, and whether sufficient measures are to be taken to limit it, when granting the authorisation. This may include minimising the obtaining of any material clearly relating to T's family and in the event it is inadvertently captured, applying the safeguards in the Act, including destroying material which is no longer relevant.

3.28 Where it is proposed to conduct targeted equipment interference specifically against individuals who are not suspected of direct or culpable involvement in the overall matter being investigated, interference with the privacy or property of such individuals should not be considered as collateral intrusion but rather as intended intrusion. Any such targeted equipment interference activity should be carefully considered against the necessity and proportionality criteria.

Example: A relevant agency seeks to establish the whereabouts of N. It is proposed to conduct targeted equipment interference against P, who is an associate of N but who is not assessed to be of direct intelligence concern. The targeted equipment interference will enable surveillance to be conducted via P's device, in order to obtain information about N's location. In this situation, P will be the subject of the targeted equipment interference warrant and the person issuing the warrant should consider the necessity and proportionality of conducting surveillance against P, bearing in mind the availability of any other less intrusive means to identify N's whereabouts. It may be the case that the surveillance conducted via P's device will also result in obtaining information about P's family, which in this instance would represent collateral intrusion also to be considered by the person issuing the warrant.

Judicial Commissioner approval

3.29 Before a targeted equipment interference warrant comes into force, its issuance must be approved by a Judicial Commissioner. Section 108 of the Act sets out the test that a Judicial Commissioner must apply when deciding whether to approve the issuance of a targeted equipment interference warrant. This includes reviewing the warrant issuer's conclusion on whether the warrant is necessary and whether the conduct it authorises is proportionate to what is sought to be achieved.

3.30 In reviewing these factors, the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review, while ensuring compliance with the general duties in relation to privacy imposed by section 2 of the Act. The Judicial Commissioner may seek clarification of information from the relevant agencies as part of their considerations.

3.31 If the Judicial Commissioner refuses to approve the decision to issue a warrant the warrant issuer may either:

  • not issue the warrant; or,
  • ask the Investigatory Powers Commissioner ( IPC) to decide whether to approve or issue the warrant (unless the IPC made the initial decision).

3.32 If the IPC refuses the decision to issue a warrant the warrant issuer must not issue the warrant. There is no further avenue of appeal available.

3.33 The Act does not mandate how the Judicial Commissioner must show or record their decision. These practical arrangements should be agreed between the relevant agencies and the Investigatory Powers Commissioner. The Act does not, for example, require the Judicial Commissioner to sign a legal instrument. This means that a Judicial Commissioner can provide oral approval to issue a warrant. However, when a Judicial Commissioner refuses to approve a person's decision to issue, they must give the person written reasons. It is important that a written record is taken of any such approvals.

Urgent authorisation of a targeted equipment interference warrant

3.34 The Act makes provision for cases in which a targeted equipment interference warrant is required urgently.

3.35 What constitutes an urgent case is determined by whether it would be reasonably practicable to seek the Judicial Commissioner's approval to issue the warrant in the requisite time. The requisite time reflects when the authorisation needs to be in place to meet an operational or investigative need. Urgent warrants should fall into at least one of the following three categories:

  • imminent threat to life or serious harm. For example, if an individual has been kidnapped and it is assessed that their life is in imminent danger;
  • an intelligence gathering opportunity which is significant because of the nature of the potential intelligence, the operational need for the intelligence is significant, or the opportunity to gain the intelligence is rare or fleeting. For example, a group of human traffickers is about to meet to make final preparations to traffic individuals to an unknown location;
  • a significant investigative opportunity. For example, a consignment of Class A drugs is about to enter Scotland and Police Scotland wants to have coverage of the perpetrators of serious crime in order to effect arrests.

3.36 The decision by the law enforcement chief to issue an urgent warrant must be reviewed by a Judicial Commissioner within three working days following the day of issue.

3.37 If the Judicial Commissioner retrospectively agrees to the law enforcement chief's or appropriate delegate's issuance of the urgent warrant, and it is still considered necessary and proportionate by the relevant agency, renewal of the urgent warrant may be sought. A warrant issued under the urgency procedure lasts for five working days following the day of issue unless renewed. If it is renewed it expires after six months, in the same way as non-urgent targeted equipment interference warrants.

Format of targeted equipment interference warrants

3.38 The warrant must describe the type of equipment that is to be interfered with and the conduct that the person to whom the warrant is addressed is authorised to take. The warrant must include the details specified in the second column of the table in section 115 of the Act that relate to relevant equipment described in the first column.

3.39 Each warrant will comprise a warrant instrument signed by the person responsible for issuing the warrant and may also include a schedule or set of schedules. The warrant instrument will include:

  • a statement that it is a targeted equipment interference warrant;
  • the subject of the equipment interference to which the warrant relates [9] . Where required, descriptions on the instrument can be in the form of an alias or other description that identifies the subject;
  • a warrant reference number; and
  • the persons who may subsequently modify the warrant in an urgent case (if designated in accordance with section 123 of the Act).

3.40 A targeted equipment interference warrant may expressly authorise the disclosure of any material obtained under the warrant. However, a warrant does not need to specify all potential disclosures of material. Disclosure of material is permitted provided that it is not an unauthorised disclosure for the purposes of section 132 of the Act. This may include, for example, disclosure of material for admission as evidence in criminal and civil proceedings.

Duration of targeted equipment interference warrants

3.41 Targeted equipment interference warrants issued using the standard procedure are valid for an initial period of six months. Warrants issued under the urgency procedure are valid for five working days following the date of issue unless renewed by the law enforcement chief.

3.42 Upon renewal, warrants are valid for a further period of six months. This period begins on the day after the day on which the warrant would have expired, had it not been renewed. In practice this means that if a warrant is due to end on 3 March but is renewed on 1 March, the renewal takes effect from 4 March and the renewed warrant will expire on 3 September. A targeted equipment interference warrant may only be renewed in the last 30 days of the period for which it has effect.

3.43 Where a combined targeted equipment interference warrant includes warrants or authorisations which would cease to have effect at the end of different periods, the combined warrant will expire at the end of the shortest of the periods.

3.44 Where modifications to a targeted equipment interference warrant are made, the warrant expiry date remains unchanged. However, where the modification takes place under the urgency provisions, the modification expires after five working days following the date of issue, unless it is renewed in line with the routine procedure.

3.45 Where a change in circumstance leads the relevant agencies to consider it no longer necessary, proportionate or practicable for a warrant to be in force, the relevant agency must make a recommendation to the law enforcement chief that it should be cancelled with immediate effect.

Failure to approve a targeted equipment interference warrant issued in urgent case

3.46 Where an urgent targeted equipment interference warrant has been issued and the Judicial Commissioner refuses to approve the decision to issue it, the relevant agencies must, as far as reasonably practicable, secure that anything in the process of being done under the warrant stops as soon as possible.

3.47 The Judicial Commissioner may:

  • authorise further interference with equipment for the purpose of enabling the relevant agencies to secure that anything in the process of being done under the warrant stops as soon as possible;
  • direct the destruction of any material obtained under the warrant; and
  • impose conditions as to the use or retention of any of that material.

3.48 The Judicial Commissioner may ask the relevant agencies to make representations about how they should exercise their functions in relation to the matters detailed in this paragraph.

Modification of a targeted equipment interference warrant

3.49 Targeted equipment interference warrants may be modified under the provisions of section 123 of the Act. A warrant issued by a law enforcement chief or their appropriate delegate can be modified at any time, by the law enforcement chief or, if the warrant was issued by an appropriate delegate, it can be modified by that person.

3.50 The modifications that may be made are:

  • adding to the matters to which the warrant relates;
  • removing a matter to which the warrant relates;
  • adding any name or description to the names or descriptions included in the warrant. Such a modification cannot be made to a warrant which relates to a targeted subject i.e. that relates to a particular person, organisation or location;
  • varying or removing any such name or description. Such a modification cannot be made to a warrant which relates to a targeted subject i.e. that relates to a particular person, organisation or location;
  • adding to the descriptions of types of equipment included in the warrant;
  • varying or removing a description of a type of equipment included in the warrant.

3.51 The modifications above may be made providing that the conduct authorised by the modification is within the scope of the original warrant. It is for this reason that section 123(3) of the Act prohibits modifications to add, vary or remove the name or descriptions of a warrant that relates to just one specified person, organisation or location, as such a modification would go beyond the original scope of the warrant. In practice this means that a warrant which relates to a targeted subject cannot be modified into a targeted thematic warrant; a fresh warrant would be required. Modifications to add names or descriptions, which fall within the scope of the original warrant, are required to be made to targeted thematic warrants when it is reasonably practicable to do so (see paragraph 3.72).

3.52 In accordance with section 123(11) of the Act, a relevant agency is permitted to amend a warrant (including the name or description included in relation to the subject-matter) as long as such an amendment does not alter the conduct that is authorised by that warrant. An example of this would be to correct a spelling error.

3.53 Two examples are provided below – the first would not be permitted, but the second would be:

Example of a modification that would not be permitted:

A relevant agency obtains a targeted equipment interference warrant relating to equipment associated with a specific serious criminal known as 'Mr. Big'. The law enforcement chief, with Judicial Commissioner approval, issues the warrant authorising the interference of equipment of 'Mr. Big'. The investigation progresses and the relevant agency wants to interfere with the equipment of one of 'Mr. Big's' associates. This would require a new warrant – the warrant against 'Mr. Big' cannot be modified so it is against an additional person.

Example of a modification that would be permitted:

A relevant agency obtains a targeted thematic equipment interference warrant relating to equipment associated with a specific serious criminal known as 'Mr. Big' and his unidentified associates. The law enforcement chief, with Judicial Commissioner approval, issues the warrant authorising the interference of equipment of "'Mr. Big' and his unidentified associates investigated under Operation NAME". The investigation progresses and the relevant agency wants to interfere with the equipment of one of 'Mr. Big's' associates. The warrant could be modified to add the name or description of the associate, if reasonably practicable to do so, and the associate's equipment if it did not fall within the type of equipment already described on the warrant.

3.54 In the case of a modification of a warrant issued to a law enforcement officer, the decision to make a modification must be approved by a Judicial Commissioner, except where the person who made the modification considered that there was an urgent need to make it, (wherein different modification provisions are provided for, detailed below at paragraph 3.56).

Urgent modification of targeted equipment interference warrants

3.55 Section 123 of the Act makes provision for cases in which modifications of a warrant are required urgently and section 124 of the Act provides for the approval process for modifications in urgent cases. A modification will only be considered urgent if there is a very limited window of opportunity to act. For example, this may include a threat to life situation, where a kidnapping has taken place, or where intelligence has been received that a significant quantity of drugs is about to enter the country. In some cases, the modification will necessarily be short-lived, for instance if a kidnapping is quickly resolved.

3.56 The relevant law enforcement chief or, if the warrant was issued by an appropriate delegate, an appropriate delegate may make the urgent modification. The modification then must be considered by a Judicial Commissioner within three working days. In the event that the Judicial Commissioner does not agree to the urgent modification, the warrant has effect as if the modification had not been made but the lawfulness of the activity already conducted under the urgent modification is not affected. The person to whom the warrant is addressed must, so far as is reasonably practicable, secure that anything in the process of being done under the warrant, by virtue of the modification, stops as soon as possible. If the Judicial Commissioner refuses to approve the decision to make a modification they may authorise further interference, but only in the interest of ensuring that anything being done by virtue of the modification is stopped as soon as possible.

Renewal of targeted equipment interference warrants

3.57 Section 117 of the Act sets out that the appropriate person may renew a warrant at any time during the renewal period which is a period of 30 days ending with the day at the end of which the warrant would otherwise cease to have effect. Applications for renewals of warrants should contain an update of the matters outlined in paragraph 3.19. In particular, the applicant should give an assessment of the value of targeted equipment interference to date and explain why it is considered that targeted equipment interference continues to be necessary for one or more of the relevant grounds, and why it is considered that the interference continues to be proportionate. Consideration of the extent (if any) of collateral intrusion that has occurred to date, and how this has been managed, will be relevant to the consideration of proportionality. Sections 111 to 114 of the Act (additional safeguards) apply in relation to the renewal of warrants in the same way as they apply to a decision to issue a warrant.

3.58 In all cases, a warrant may only be renewed if the renewal has been approved by a Judicial Commissioner.

3.59 A copy of the warrant renewal instrument will be forwarded to all persons on whom a copy of the original warrant has been served, providing they are still actively assisting with the implementation of the warrant. A warrant renewal instrument will include the reference number of the warrant or warrants being renewed under this single instrument.

Cancellation of targeted equipment interference warrants

3.60 Any of the persons authorised to issue warrants under Part 5 of the Act may cancel a warrant at any time. If an appropriate person within a relevant agency considers that such a warrant is no longer necessary or that the conduct authorised by the warrant is no longer proportionate to what is sought to be achieved by that conduct, the appropriate person must cancel the warrant. The relevant agencies therefore will need to keep their warrants under review in order to take the appropriate action once the warrant is no longer necessary or proportionate. The relevant agencies should take steps to cease the interference as quickly as possible if they consider that the warrant is no longer necessary or proportionate – they should not wait until the necessary cancellation instrument has been signed.

3.61 The Act requires the person to whom a warrant is addressed to ensure that anything in the process of being done under the warrant stops as soon as possible, so far as is reasonably practicable. In some circumstances it may be impossible, or not reasonably practicable, to cease all elements of interference upon cancellation of a warrant. In deciding what ought to be done to achieve this, a relevant agency must consider what further interference with equipment and privacy might be necessary and whether it is proportionate to undertake it (without further authorisation) in order to stop the original activity. In cases of doubt relevant agencies may seek advice from the IPC.

3.62 The cancellation instrument should be addressed to the person to whom the warrant was issued and should include the reference number of the warrant and the description of the equipment specified in the warrant. A copy of the cancellation instrument should be sent to any persons who have assisted in giving effect to the warrant in the preceding 12 months.

Targeted thematic equipment interference warrants

3.63 In some cases, Part 5 warrants will relate to subjects linked by a common theme. These are sometimes referred to as targeted "thematic" warrants. Targeted thematic warrants can cover a wide range of activity; it is entirely possible for a thematic warrant to cover a wide geographical area or involve the acquisition of a significant volume of data, provided the strict criteria of the Act are met. Thematic warrants, as set out at section 101 of the Act, may relate to equipment:

a. belonging to, used by or in the possession of a group of persons who share a common purpose or who carry on, or may carry on, a particular activity.

b. belonging to, used by or in the possession of more than one person or organisation, where the interference is for the purpose of a single investigation or operation.

c. in more than one location, where the interference is for the purpose of a single investigation or operation.

d. which is being, or may be, used for the purposes of a particular activity or activities of a particular description.

e. which is being, or may be, used to test, maintain or develop capabilities relating to interference with equipment for the purpose of obtaining communications, equipment data or other information.

f. which is being, or may be, used for the training of persons who carry out, or are likely to carry out, such interference with equipment.

A thematic warrant may be appropriate where the relevant statutory tests are met and where a series of individual warrants is not practicable, or where the proposed activity is more suitably dealt with by a thematic subject-matter in light, for example, of the operational circumstances.

Specificity of targeted thematic equipment interference warrants

3.64 The Act requires that certain details must be included in the warrant dependent on the subject-matter(s) of the warrant. For example, a thematic warrant that relates to equipment used by a group which shares a common purpose must include a description of that purpose as well as the name or description of as many of the persons who form part of that group as it is reasonably practicable to name or describe. A relevant agency must, when the thematic subject-matter requires it, name or describe as many of the specific persons, organisations, locations or sets of premises as is reasonably practicable at the time of the issue of the warrant. Descriptions of persons, organisations, locations or sets of premises must be as granular as possible, consistent with operational constraints and the information available at the time the warrant is issued.

3.65 Therefore, if known, and if it is reasonably practicable to do so, a relevant agency must name or describe each of the persons, organisations, locations or sets of premises caught by the subject-matter of a thematic warrant when applying for the warrant. In some cases aliases may be used to describe individual subjects where their real name is not yet known.

3.66 However, it may not always be reasonably practicable to include specific names or descriptions. Accordingly there are two types of thematic warrant that vary based upon whether or not it is reasonably practicable to specifically name or describe every subject of the interference.

Example of interference where it is reasonably practicable to include additional details of those falling within the subject-matter of the warrant: A relevant agency wishes to interfere with the equipment of people for the purposes of an investigation into human trafficking. The relevant agency applies for a warrant in relation to "equipment used by more than one person for the purpose of operation X" and three of those persons are known to be ''Mr A', 'Mr B' and 'Mrs C''. As it is reasonably practicable to do so their names must be included in the warrant at the point of issuing. Once issued, this warrant authorises interference with the equipment used by ''Mr A', 'Mr B' and 'Mrs C'', the type of equipment must be described within the warrant in accordance with section 115(4) of the Act. Further equipment or further names must be added by modification (see paragraph 3.72) if the relevant agency wishes to undertake further activity.

Example of interference where it is not reasonably practicable to include additional subject-matter details: A relevant agency wishes to identify persons accessing child pornography material

online. The relevant agency seeks a thematic warrant in relation to more than one person carrying on a particular activity, with the subject-matter of the warrant being "equipment used by persons accessing the child pornography website 'X'". In such a case, it may not be reasonably practicable to name or describe those persons any further than by a description which is based on their use of website 'X'. Once issued the subject-matter of this warrant is equipment used by persons known to be accessing website 'X' and the authorised interference with any type of equipment described in the warrant falling in to that description is lawful. There is no requirement to modify the warrant in accordance with section 115(3) of the Act to add names or descriptions of persons accessing the website.

3.67 In all cases the relevant agencies must have regard to whether what is sought to be achieved by any proposed interference could be achieved by less intrusive means and must seek to provide the issuing authority with individual warrant applications or, if that is not reasonably practicable, a granular list of subjects in a thematic warrant application. Therefore, before submitting a warrant application, the relevant agencies must first consider whether they are able to achieve the intended outcome of an equipment interference operation by seeking non-thematic warrants. If this is not possible an application should be considered for a warrant that specifically names or describes every subject of the interference individually. The relevant agencies must only make an application for a warrant where every subject of the interference is not named or described individually if the preceding options are not reasonably practicable.

3.68 The practicability of providing individual names or descriptions will need to be assessed on a case‑by‑case basis by the relevant agency making the application and will depend upon, for example, the existing intelligence picture, the quantity of subjects, the nature of the equipment to be interfered with and the time constraints of the particular operation.

3.69 In some instances it may not be possible to identify individual pieces of equipment or be specific about the nature of the equipment to be interfered with in advance, or there may be a technique that in itself carries out a specific small amount of interference, but enables access to the data that may already have been granted under an existing authorisation. In these cases the warrant should be specific about the technique and the circumstances in which the warrant is to be used. In such cases, the circumstances must be described in a way that enables the requirements of section 115 of the Act to be met.

Authorisation of targeted thematic equipment interference warrants

3.70 Before issuing a targeted thematic warrant the law enforcement chief must be satisfied that it is necessary and proportionate to issue it and that the subject-matter is as detailed as is reasonably practicable. In addition, the law enforcement chief and Judicial Commissioner would have to be satisfied that the method of naming or describing the subjects of the interference was compliant with the requirements of section 115(3) of the Act.

3.71 The information in relation to the names or descriptions to be included in the warrant will assist the law enforcement chief and Judicial Commissioner in foreseeing the extent of the possible interferences with privacy. The law enforcement chief's foresight of the interference with privacy has to be sufficient to allow them to make a proper decision as to the necessity and proportionality of the conduct authorised; otherwise the warrant should not be issued. This enables the law enforcement chief and the Judicial Commissioner to be satisfied as to the legality, necessity and proportionality of the proposed conduct. This will also assist those executing the warrant so that they are clear as to the scope of the authorised activity.

Modification of targeted thematic equipment interference warrants

3.72 Targeted thematic equipment interference warrants may be modified subject to the provisions in the Act (further detail on modifications, including how they apply to non-thematic warrants, is set out at paragraphs 3.49 to 3.55).

3.73 The modifications that can be made to a thematic equipment interference warrant are:

  • adding or removing a matter to which the warrant relates;
  • adding, varying or removing a name or description in relation to a subject-matter; or
  • adding, varying or removing a description of the type of equipment to be interfered with.

3.74 The ability, and requirement, to modify the names or descriptions included in a targeted equipment interference warrant varies depending on the subject-matter of the original warrant and whether, in the case of thematic warrants, the warrant does or does not specifically name or describe every subject of the interference individually.

3.75 Non-thematic targeted equipment interference warrants (warrants that relate to equipment belonging to, used by or in the possession of a particular person or organisation, or in a particular location) cannot be modified in any way that would alter the conduct authorised by the warrant other than modifying the description of the equipment to be interfered with.

3.76 For thematic targeted equipment interference warrants which do specifically name or describe every subject of the interference individually, modifications must be made to add or remove any names or descriptions. Modifications will also be required where the relevant agency wishes to interfere with a type of equipment that was not originally described in the warrant.

3.77 Where a targeted thematic equipment interference warrant does not specifically name or describe every subject of the interference individually, but instead describes them with a general term, modifications are not required to interfere with the equipment of any person, organisation or equipment in any location if the equipment falls within the description in the warrant.

3.78 Modifications are not necessary in such circumstances as the warrant already provides lawful authority to interfere with the relevant equipment. As described in paragraph 3.70 the law enforcement chief and Judicial Commissioner must consider this to be necessary and proportionate before issuing the warrant and must clearly understand the extent of the interference that they are authorising. Modifications are also not required where a relevant agency wishes to amend the description of the subject of an equipment interference warrant as long as such an amendment does not alter the conduct that is authorised by that warrant, in accordance with section 99(5) of the Act. However, a modification would be required to add, or remove matters to which the warrant relates or to add, vary or remove a description of a type of equipment.

Renewal of targeted thematic equipment interference warrants

3.79 The provisions relating to renewal of warrants, described in paragraphs 3.57-3.59, apply to targeted thematic warrants. In particular, when seeking to renew a targeted thematic warrant that does not specifically name or describe each subject the applicant should include in the renewal application as much additional information as possible about the known subjects of the warrants and any relevant information about subjects that have not yet been specifically identified. This additional information will ensure that the law enforcement chief and Judicial Commissioner will have further opportunity to consider the necessity and proportionality of the interference, supported by up‑to‑date information.

Cancellation of targeted thematic equipment interference warrants

3.80 There is an ongoing duty to review warrants and to cancel them if they are no longer considered to be necessary and proportionate. More detail regarding the cancellation of warrants can be found in paragraphs 3.60-3.62.

3.81 Where persons, organisations and locations are named or described by way of a category rather than individually, there is no ongoing requirement to provide names or descriptions within that category to the law enforcement chief once the warrant is issued. However, if, over the course of an operation, the relevant agency understands that the description provided and included in the warrant is no longer accurate to the information that they provided in the warrant application they must consider whether the warrant should be modified, or cancelled by virtue of the requirement to cancel any warrant that is no longer necessary and proportionate.

Example: A relevant agency may seek a warrant to interfere with the equipment of persons who are users of website 'X', and sets out in the application that they will be unable to individually name or describe the users due to an anticipated large quantity. However, over the course of the operation the relevant agency determines that only a proportion of people falling within description of 'users of website 'X' are of intelligence interest. The relevant agency must assess whether the proportionality case accepted by the law enforcement chief and Judicial Commissioner remains appropriate. If the change in circumstances affects the proportionality of the warranted activity then the warrant should be modified to reflect more precisely those subject to interference or the law enforcement chief should be notified that the warrant may need to be cancelled.

Combined warrants

3.82 Where a relevant agency wishes to conduct targeted equipment interference but not all of the proposed conduct can properly be authorised under a targeted equipment interference warrant, additional warrants or authorisations will be required. The relevant agency may either obtain a combined warrant or may obtain separate warrants/authorisations pursuant to the Act, RIP(S)A or the 1997 Act.

Example: A relevant agency wishes to covertly enter residential premises to search for physical evidence and also download material from a device located within the premises. The obtaining of material from the device constitutes targeted equipment interference. However, the associated entry to property is a separate interference with property and the intrusive surveillance is not linked to the communications, equipment data or other information obtained from the targeted equipment interference. The entry to property and intrusive surveillance cannot be authorised by the targeted equipment interference warrant and must be authorised by a property interference authorisation and an intrusive surveillance authorisation respectively (a directed surveillance authorisation may also be required). All three authorisations relate to the same operational activity and the same information will be relevant across the applications. A combined warrant is therefore likely to be appropriate.

3.83 Schedule 8 to the Act provides for combined warrants. Combining warrant applications is not mandatory, but provides the option for grouping warrant applications for the same operational activity together so that the full range of actions that may be undertaken can be addressed. This allows the law enforcement chief and/or Judicial Commissioner to consider the full range of actions that may be undertaken in relation to the investigation. In appropriate cases, it can allow a more informed decision about the necessity and proportionality of the totality of the action to be authorised and can also be more efficient for the relevant agency applying for the warrant.

3.84 In some cases, the decision to combine warrants will necessitate a higher authorisation process than would otherwise be required for individual warrant applications. Where two warrants are combined that would otherwise be issued by different authorities (for example, an equipment interference warrant issued by a law enforcement chief and an interception warrant issued by the Scottish Ministers), the warrant will always be issued by the higher authority level (in this example, the Scottish Ministers). Where part of a combined warrant is cancelled, the whole warrant ceases to have effect under the same procedures set out at paragraph 3.60.

3.85 Where warrants are sought urgently and the intention is to proceed later with a combined warrant application, such an application must be made before the urgent warrant authorisation ceases to have effect. An urgent warrant authorisation ceases to have effect at the end of the fifth working day after the day on which the warrant was issued.

3.86 As per paragraph 20(1)(a) of Schedule 8 of the Act, the duties imposed by section 2 (having regard to privacy) apply to combined warrants as appropriate. So the targeted equipment interference element of a combined warrant cannot be issued without having regard to privacy as per section 2 of the Act.

3.87 The exclusion of matters from legal proceedings (section 56 of the Act) continues to apply to an interception warrant that is part of a combined warrant. However, when a targeted equipment interference warrant is combined with an interception warrant the material derived from targeted equipment interference may still be used in legal proceedings if required. If material derived from targeted equipment interference authorised by a combined warrant can be recognised as a product of interception, and therefore reveals the existence of a warrant issued under Chapter 1 of Part 2 of the Act, the material is excluded from use in legal proceedings according to section 56 of the Act.

3.88 Should the exclusion from legal proceedings mean that there may be difficulties in disclosing any material obtained under a combined warrant that included an interception warrant, the Police Service of Scotland [10] may wish to consider the possibility of seeking individual warrants instead.

Applications made by or on behalf of the relevant agencies

3.89 Paragraph 12 of Schedule 8 of the Act sets out that the law enforcement chief of the relevant agencies may issue a warrant that combines a targeted equipment interference warrant with one or more of the following:

  • a directed surveillance authorisation under section 6 of RIP(S)A
  • an intrusive surveillance authorisation under section 10 of RIP(S)A
  • a property interference authorisation under section 93 of the 1997 Act.

Example: A relevant agency wishes to conduct an operation which involves directed surveillance (provided for under section 6 of RIP(S)A) and targeted equipment interference. Under Schedule 8 of the Act they may wish to combine these applications. The relevant law enforcement chief would consider the directed surveillance activity as part of the entire combined application. This entire combined application would also require approval by a Judicial Commissioner.

3.90 The above considerations do not preclude the relevant agencies from obtaining separate warrants where appropriate. This may be required in order to preserve sensitive techniques, or may be more efficient if other authorisations are already in place.

Example: A relevant agency is monitoring a subject under the authority of a directed surveillance authorisation. An opportunity is identified to conduct targeted equipment interference on the subject's device. It is necessary to continue to monitor the subject to ensure the targeted equipment interference can be conducted covertly and to minimise the risk of compromise. Provided this continued surveillance is authorised under the existing directed surveillance authorisation, a further surveillance authorisation would not be required and therefore a combined warrant is not likely to be appropriate and a separate targeted equipment interference authorisation could be obtained.

Collaborative working

3.91 Any person applying for a targeted equipment interference warrant will need to be aware of particular sensitivities in the local community where the interference is taking place which could impact on the deployment of targeted equipment interference capabilities. The relevant agencies must also take reasonable steps to de-conflict (as relevant) with other agencies (which are able to conduct targeted equipment interference under the Act). Where a warrant applicant considers that conflicts might arise with another agency, they should consult a senior colleague within the other agency.

3.92 In cases where the relevant agencies are acting on behalf of another, the tasking agency should normally obtain the targeted equipment interference warrant. For example, where targeted equipment interference is carried out by the Police Service of Scotland in support of the National Crime Agency ( NCA), the warrant would usually be sought by the NCA. Where the operational support of other agencies (in this example, the Police Service of Scotland) is foreseen, this should be reflected in the warrant application and specified in the warrant. However, where the relevant agencies consider it would be more proportionate for another agency to obtain the warrant on their behalf, that other agency must obtain the warrant. For example, where the Police Service of Scotland considers that there are not sufficient safeguards in place to ensure the protection of a sensitive technique, it may approach the NCA to obtain the warrant.

3.93 Where possible, the relevant agencies should seek to avoid duplication of warrants as part of a single investigation or operation. For example, where two agencies are conducting targeted equipment interference as part of a joint operation, only one warrant is required. Duplication of warrants does not affect the lawfulness of the activities to be conducted, but may create an unnecessary administrative burden on agencies.

3.94 Where an individual or a non-governmental body is acting under direction of the relevant agencies any activities they conduct which comprise targeted equipment interference for the purposes of the Act definitions, should be considered for authorisation under that Act.

3.95 There are two further important considerations with regard to collaborative working:

  • applications for targeted equipment interference warrants by the Police Service of Scotland must only be made by a member or officer of the Police Service of Scotland; and
  • applications for targeted equipment interference warrants by the Police Investigations and Review Commissioner must only be made by a member or officer of the Police Investigations and Review Commissioner, regardless of which force or agency is to conduct the activity.

3.96 When collaboration between relevant agencies is expected to be required for an operation from the outset the warrant applicant must name each agency in the warrant application. The application should set out why the involvement of each additional agency is required and to what extent they are intended to be involved in the proposed equipment interference. The warrant application should describe specifically the targeted equipment interference that each relevant agency is required to conduct.

3.97 Any warrant that specifically authorises the activity of multiple relevant agencies should specify any relevant restrictions on the sharing of information derived from the interference between such agencies.

3.98 Where the relevant agencies require an international partner – who is not therefore a relevant agency – to undertake an action authorised by a targeted equipment interference warrant, this must be clearly specified within the warrant application. The application must make clear why the assistance of an international partner is required and specify the activity that the relevant agencies intend to request of that partner. Once a warrant is issued, the relevant agencies may work collaboratively with an international partner to carry out equipment interference in accordance with that warrant by virtue of section 126 of the Act.

Incidental conduct

3.99 Where a relevant agency obtains a targeted equipment interference warrant, the warrant also authorises any conduct necessary to undertake what is expressly authorised or required by the warrant (excluding conduct that constitutes the interception of live communications [11] ).

3.100 This conduct may therefore include interference with associated or non-target equipment in order to obtain communications, equipment data or other information from the target equipment, providing that the conduct does not constitute live interception.

3.101 When applying for a targeted equipment interference warrant the applicant should set out expressly any foreseeable incidental conduct that will be required to facilitate the targeted equipment interference. It is possible that during the course of targeted equipment interference activity further incidental conduct will be required that was not previously foreseen. This incidental conduct, and the obtaining of any material pursuant to this incidental conduct, is permissible and lawful for all purposes, but only so long as it is necessary for what is expressly authorised by the warrant.

Example: A relevant agency has obtained a warrant to acquire communications and other relevant information from a target's device, which it anticipates gaining covert access to for a brief period of time. During the operation, the relevant agency unexpectedly has access to two devices, and cannot determine whether one or both belong to the target. The relevant agency is permitted to examine both using equipment interference techniques in order to clarify whether one or both belong to the target – this is incidental conduct, which may involve the obtaining of data from both devices. If one device is then found not to be connected to the target, this will be classed as collateral intrusion and the full equipment interference described in the warrant will not take place against that device and any data already obtained relating to that device will be deleted as soon as possible.

3.102 The warrant applicant, law enforcement chief and Judicial Commissioner should consider the incidental conduct that it may be necessary to undertake in order to do what is authorised on the face of the warrant. In cases where conduct is not clearly incidental, but may instead constitute a separate use of another power, the warrant applicant should consider whether a separate authorisation is required. If the status of incidental conduct remains uncertain the warrant applicant may seek a separate authorisation (a combined authorisation may be appropriate).

Surveillance

3.103 The obtaining of communications or information authorised by a targeted equipment interference warrant includes obtaining those communications or information by surveillance. 'Surveillance' for these purposes includes monitoring, observing or listening to a person's communications or other activities, or recording anything that is monitored, observed or listened to. This could include intrusive surveillance (surveillance carried out in a residence or private vehicle) or directed surveillance (surveillance that is not in an intrusive setting, such as monitoring a subject in a public place).

3.104 A separate authorisation for surveillance under RIP(S)A will not therefore be required providing the conduct comprising the surveillance is properly authorised by a targeted equipment interference warrant. The interference with privacy and property resulting from the targeted equipment interference will be considered as part of the targeted equipment interference authorisation.

3.105 In cases where the relevant agencies wish to obtain communications or information by surveillance under a targeted equipment interference warrant, the proposed activity should be set out in the application and be expressly authorised by the warrant.

3.106 By contrast, where the surveillance is not linked to the communications, equipment data or other information obtained from the targeted equipment interference, this will not be capable of authorisation under a targeted equipment interference warrant.

3.107 For example, if the relevant agencies wish to conduct separate surveillance on the user of a device at the same time as the device itself is being subjected to targeted equipment interference, then this will not be considered as part of the targeted equipment interference authorisation and appropriate surveillance authorisation must be obtained. In this situation a combined warrant may be appropriate (for information on combined warrants, see paragraph 3.82).

Interception

3.108 A targeted equipment interference warrant cannot authorise conduct that would amount to an offence, under section 3(1) of the Act, of unlawful interception of a communication in the course of its transmission (e.g. live interception of an online video call) except if the warrant authorises the obtaining of a communication stored in or by a telecommunication system. If the Police Service of Scotland wishes to conduct interception of communications other than stored communications, an interception warrant must be obtained under Part 2 of the Act (further guidance on interception warrants may be found in the Interception of Communications Code of Practice).

Trade unions

3.109 The relevant agencies are permitted to apply for a warrant against members or officials of a trade union considered to be a legitimate intelligence target where that is necessary for one or more of the statutory purposes and proportionate to what is sought to be achieved. As set out in section 106(2) of the Act, the fact that the information that would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary for a statutory purpose.

Protection of the privacy and security of other users of equipment and systems, including the internet

3.110 The relevant agencies must not intrude into privacy any more than is necessary to carry out their functions or enable others to do so. To leave targets open to exploitation by others would increase the risk that their privacy would be unnecessarily intruded upon. Targeted equipment interference activity must therefore be carried out in such a way as to appropriately minimise the risk of any increase in the: (i) likelihood or severity of any unauthorised intrusion into the privacy; or (ii) risk to the security of users of equipment or systems (whether or not those equipment or systems are subject to the activities of the relevant agencies).

Example: A relevant agency wishes to obtain communications from a device associated with an intelligence target which is connected to the internet through a network used by a range of individuals, not all of whom are of intelligence interest. Before issuing the warrant, the relevant agency must consider whether the proposed course of action would enable others to intrude into the privacy of users of the network, including those not of intelligence interest as well as the target. If this were to be the case, the relevant agency would (having first determined the necessity and proportionality of the activity proposed) need to be satisfied that the enabling of any such intrusion was minimised to the greatest extent possible.

3.111 In the case of warrants issued for the purposes of testing or training, interference should be carried out in such a way as to appropriately minimise the probability and seriousness of intrusion into the privacy of any persons affected by, or in the vicinity of, the proposed activity.

3.112 Any application for a targeted equipment interference warrant should contain an assessment of any risk to the security or integrity of systems or networks that the proposed activity may involve including the steps taken to appropriately minimise such risk according to paragraph 3.110.


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