Lord Anderson of Ipswich's presentation to the Human Rights Lawyers' Association on 25 Oct 2018, kindly shared with his permission.

1. David Anderson Q.C.
@bricksilk
QMUL Lincoln’s Inn Fields
25 October 2018

2.  Powers enabling the collection and retention
of data (by government or by others)
 Much of which is not associated with current
targets
 Accessible by public authorities for specified
purposes

3.  CSPs required to retain their subscribers’
traffic and location data for up to 2 years
 Police obtain 300,000+ such data items p.a.
 c. 15% of requests are for data more than 6
months old (but 37% in sexual offence cases,
27% in terrorism cases)

4. “Historic communications data is frequently
useful, and sometimes of crucial importance, in
any case when a suspect is identified only after
the event; in tracing the previous communications
or travel patterns of a suspect, for example to
piece together a conspiracy; to identify a device
from its IP address; and in relation to cyber-
enabled and cyber-dependent crime. Data
relating to a victim’s communications history may
also be useful in solving a crime.”
D. Anderson, 2018

6.  Strong selector process
 Copy of all comms on chosen bearers held briefly
 Strong selectors relating to individual targets
applied to those comms in near real-time
 Complex query process
 Fewer bearers, but comms retained longer
 Sequence of searches, variety of criteria

7.  Bulk powers used by SIAs for:
 counter-terrorism
 counter-proliferation
 organised crime
 child sexual exploitation
 support of military operations
 cyber-defence
 Target discovery, target development, triaging of leads,
basis for disruptive action
 Almost always, bulk powers are used not alone but in
conjunction with other powers

8. “While the principal value of the power lies in the
collection of secondary data, the collection and
analysis of content have also been of very great
utility, particularly in assessing the intentions and
plans of targets, sometimes in crucial situations.
The various suggested alternatives, alone or in
combination, may be useful in individual cases but
fall short of matching the results of bulk
interception. They may also be slower, more
expensive, more intrusive or riskier to life.”

9.  Application personally by SIA Chief
 Signed and issued personally by SoS
 Approved by Judicial Commissioner
 Necessary in interests of national security
 Nec/prop for specified operational purposes
 Must consider less intrusive measures,
integrity/security of systems, privacy protection
 Rules on retention, disclosure, destruction
 Audited by technically skilled IPCO inspectors

10.  Full individual warrant required before the
content of comms of a person known to be in
the UK may be selected for examination
 No such requirement for content of comms
of a person outside UK, or metadata
(cp AQOT Rec 80: “appropriately rigorous and
rights-compliant procedures” should apply)

11. ECtHR - STRASBOURG CJEU - LUXEMBOURG

12. SCHREMS 1 (2014)
EU law prohibits legislation
permitting the public
authorities to have access on
a generalised basis to the
content of electronic
communications
TELE2/WATSON (2016)
EU law prohibits legislation
which provides for the
general and indiscriminate
retention of traffic and
location data
…except in areas where there
is a high crime risk: and
restrict to serious crime, prior
independent authorisn, store
data in EU, notify targets

13.  “In view of the scourge of global terrorism
and other serious crime, such as drug
trafficking, human trafficking, the sexual
exploitation of children and cybercrime … the
decision to operate a bulk interception
regime in order to identify hitherto unknown
threats to national security is one which
continues to fall within States’ margin of
appreciation.”
 – Judgment, para 314

14. “In view of the independent oversight … and
extensive independent investigations which
followed the Edward Snowden revelations, [the
Court] is satisfied that the intelligence services
of the UK take their Convention obligations
seriously and are not abusing their powers.”
- Judgment, para 387

15. “Nevertheless, examination of those powers has
identified two principal areas of concern:
First, the lack of oversight of the entire selection
process, including selection of bearers, selectors
and search criteria for filtering intercepted
communications, selection of material for
examination
Secondly, the absence of any real safeguards
applicable to the selection of related
communications data for examination.”

17.  “Given its history in the protection of civil
liberties and the significant recent improvement
to privacy laws and mechanisms, the UK can
now justifiably reclaim its leadership role in
Europe as well as globally.
 The UK is now co-leading with that tiny minority
of EU states which have made a successful effort
to update their legislative and oversight
framework dealing with surveillance.”
Prof Joseph Cannataci, June 2018

18. “Thanks largely to pressure from civil society
and many concerned officials and members of
the UK Parliament, the UK’s oversight regime
has been significantly improved.”

19. David Anderson Q.C.
@bricksilk
QMUL Lincoln’s Inn Fields
25 October 2018