The distinction between external and internal communications

The ISC’s March 12, 2015 Report recognized that the lack of correspondence between the routing of internet communications and geographical boundaries creates problems for RIPA’s distinction between “internal” and “external” communications. While RIPA requires targeted 8(1) warrants for the interception of internal communications, only untargeted 8(4) warrants are required for intercepting external communications. According to the Committee, the distinction is “confusing and lacks transparency;” [t]he Government must publish an explanation of which internet communications fall under which category, and ensure that this includes a clear and comprehensive list of communications.” Concl. O. (For a more thorough account of RIPA’s distinction between “internal” and “external” communications and the types of warrants required, see the post, “The difficulty of distinguishing between external and internal communications” in our section on Liberty et al‘s challenge before the IPT).

As the ISC recognized, clarifying the distinction is not sufficient to protect privacy. “[A]part from an increasingly tiny proportion that are between people in the UK, using devices or services based only in the UK, and which only travel across network infrastructure within UK,” all internet communications count as external communications under RIPA. Para. 109. Under 16(2) and (3) of RIPA, external communications of a person known to be in the UK can be selected for examination only if the Secretary of State certifies that examining that particular person’s communications is necessary for national security, the prevention or detection of serious crime, or the economic well being of the UK. The ISC concluded, however, that “[t]he nature of the 16(3) modification system is unnecessarily complex and does not provide the same rigour as that provided by an 8(1) warrant.” Therefore, the Committee recommended that 8(1) warrants always be required for “searching for and examining the communications of a person known to be in the UK.” Concl. Q. (For a more extended explanation of RIPA s.16(2) and 16(3), see the post, “The adequacy of the protections of s.16 of RIPA,” in our section on Liberty et al‘s challenge).

In addition, the ISC recommended that RIPA’s purely geographical distinction between internal and external communications be supplemented by a nationality distinction. “[T]he communications of UK nationals should receive the same level of protection under law, regardless of where the person is located. The interception and examination of such communications should … be authorised through an individual warrant like an 8(1) ….” Concl. R.

Overall, the ISC’s recommendations do nothing to ameliorate the central practical problem with RIPA’s distinction between internal and external communications: the difficulty of determining the geographical location of senders or recipients of internet communications. In proposing to supplement this distinction with preferential treatment for UK nationals, the ISC similarly failed to grapple with the difficulty of determining the nationality of telecommunications senders and recipients.

In addition, the ISC’s recommendation that 8(1) warrants be required for UK nationals’ communications, regardless of their location, but for others’ communications only if they are known to be in the UK, very arguably amounts to direct discrimination on the basis of national origin. In addition, absent a “very weighty” justification, such direct discrimination violates Article 14 of the European Convention on Human Rights, as we discuss in the post, “S.16(2) of RIPA and unlawful discrimination on the basis of nationality,” in our section on the Liberty et al challenge.

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