S.16(2) of RIPA provides that factors referable to a person known to be residing in the UK are not to be used to select his or her communications “to be read, looked at or listened to.” Although Liberty and the other complainants argued that this provision would make it too easy for “internal communications” to be selected for examination, the IPT announced that imposing “an obligation upon the Respondents not to read the communication if the presence of the individual in the UK is simply suspected would impose far too high an obligation, particularly in the course of extended examination of substantial numbers of communications.” Id., para. 105.
Under 16(2)(b), people known to be in the UK are not protected from having communications about them targeted for examination. Factors referring to a person known to be in the UK can be used to target others’ communications for examination, even though they cannot be used to select his or her own communications. Upholding this limit, the IPT averred that, “the aim [of s.16] is to prevent access to communications sent by or sent to an individual who is in the United Kingdom.” Id.
Additionally, the protections of s.16 apply only to the contents of communications and not associated metadata. While acknowledging that Article 8 of the ECHR protects metadata as well as contents of communications, the IPT reasoned that lesser protection was justified by the need to use metadata to determine whether individuals were entitled to the protections of s.16(2). “The ability to use the communications data/metadata … would render it a manageable task to ascertain whether the individual could be said to be known to be in the UK.” Id. Further, the IPT reasoned that by limiting access to and retention of metadata as well contents of communications, s.15(2) and (3) of RIPA compensated for s.16’s failure to protect metadata.