Thematic warrants: 'Destroying democracy under the cloak of defending it'

Thematic warrants, a troubling aspect of the draft Investigatory Powers Bill (IP Bill), grant the government the power to conduct surveillance of a group or category of people without requiring each target of the surveillance to be identified in the warrant.

These broad new powers, authorising the interception of communications and equipment interference (i.e. hacking) of people who reside in the UK, are buried in the so-called 'targeted' surveillance provisions. They upend a long tradition in the UK of prohibiting 'general warrants' and directly conflict with two recent cases decided by the European Court of Human Rights (ECHR) - Zakharov v Russia (Application No 47143/06) and Szabo and Vissy v Hungary (Application No 37138/14).

Thematic warrants in the IP Bill

The term 'thematic warrant' was first used in 2015 when the home secretary admitted that the intelligence agencies had adopted a fairly loose interpretation of 'one person' and 'single set of premises' under section 8(1)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA) and were obtaining warrants not for 'one person', but 'any organisation or association or combination of persons'. Warrants obtained under this surprising and broad definition were termed thematic warrants.

As David Davis MP stated in an oral submission to the IP Bill Joint Committee, 'Although they were not formally approved by parliament, somehow they were invented out of RIPA.'

In name thematic warrants are only mentioned at paragraph 212 of the explanatory notes to the draft IP Bill, where the home secretary admits that certain 'targeted' warrants 'have sometimes been described as thematic'.

In the draft Bill itself they appear twice, at clause 13(2), which describes the permissible subject matter for interception warrants, and clause 83, which describes the subject matter of equipment interference warrants.

These clauses permit warrants in respect of people or equipment 'who share a common purpose or who carry on, or may carry on, a particular activity' (clause 13(2)(a) and 83(b)); 'more than one person or organisation, or more than one set of premises, where the conduct authorised or required by the warrant is for the purposes of the same investigation or operation' (clauses 13(2)(b) and 83(c) and (e)); or 'equipment that is being, or may be used, for the purposes of a particular activity or activities of a particular description' (clause 83(f)).

Once warrants are granted for ill-defined categories or groups of people (or equipment) - for example, 'all mobile phones in Birmingham' (clause 83(e)) or 'anyone suspected of having travelled to Turkey' (clause 13(2)(a)) - choice as to whose privacy will be interfered with is delegated to the police or intelligence agencies, increasing the risk of arbitrary action and undermining the implementation of effective oversight, including judicial authorisation.

As Tom Hickman QC stated in his evidence to the IP Bill Joint Committee, quoting Lord Mansfield's words in Leach v Money (1765) 97 Eng. Rep. 1075: 'It is not fit that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge…'

The purported safeguards at clauses 23 and 93 are insufficient and, as highlighted by Justice, the law reform charity, thematic warrants can be modified without further judicial authorisation, under clause 26, to add or remove any person, place, or organisation.

Broad-based concern

There has been broad criticism of thematic warrants and a call for a return to suspicion-based surveillance of individuals who are properly identified and properly targeted. Mozilla warned that 'the scope of the interception and interference capabilities are dangerously expansive… This is particularly evident in the case of 'thematic warrants'…'

Liberty stated that a thematic warrant was an 'open-ended warrant that could encompass many hundreds or thousands of people' and the Network of Police Monitoring in its evidence to the Joint Committee cautioned: 'This [Clause 13]… provides policing bodies with wide-sweeping powers to undertake surveillance on political activists and protest groups. We suggest this cannot be acceptable in any democratic society.'

The government's independent reviewer of terrorism laws, David Anderson QC, recommended: 'Specific interception warrants should be limited to a single person, premises or operation. Where a warrant relates to an operation, each person or premises to which the warrant is to apply, to the extent known at the time of the application, should be individually specified on a schedule to the warrant, together with the selectors (e.g. telephone numbers) applicable to that person or premises.'

Conflict with recent court decisions

Proposals to introduce such a broad power come at a time when ECHR rulings have clarified that warrants for the interception of communications need to identify the individuals or set of premises to be put under surveillance.

In Zakharov, the Grand Chamber judgment declared that 'the interception authorisation… must clearly identify a specific person… or single set of premises' (264).

In the more recent case of Szabo, the court ruled that the body authorising surveillance must 'verify whether sufficient reasons for intercepting a specific individual's communications exist in each case' (73). Only the demonstrable existence of a reasonable suspicion, the court emphasised, 'would allow the authorising authority to perform an appropriate proportionality test' (71).

Recommendations

The home secretary seeks, in her own words, to 'protect privacy and security by improving transparency and through radical changes to the way investigatory powers are authorised and overseen'. Yet she is introducing a Bill which is full of obfuscation in relation to powers which fundamentally challenge what have historically been seen as acceptable limits on the power of the Executive.

Thematic warrants do not belong in this bill, or in any piece of legislation in a democracy, as they represent a significant step backwards in the rule of law.

Camilla Graham Wood is a legal officer at Privacy International

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