The British government’s secret Section 94 – An insidious tool of the intelligence services

By Big Brother Watch – IOCCO Report reveals truth behind secret Section 94 – The Interception of Communications Commissioner’s Office (IOCCO) has published its first report looking at the now avowed Section 94 of the Telecommunications Act 1984.

The report is the first insight we have had into the use of this until recently totally secret capability.

Section 94 we now know has been and is still, a widely used and incredibly broad capability.

It permits the Government to insist that PECNS – defined in the Communications Act 2003 as “an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public” to retain and hand over communications data which relates to all of us in the UK and abroad.

That means that the telecommunication companies we get our landline, mobile phone, broadband and Wi-Fi services from are effectively ordered by the Government to store and hand over personal data on us.

IOCCO have once again undertaken a thorough investigation and has presented a detailed and bold analysis of their findings. You can read the full report here but as an overview these are some of the key findings:

1. Section 94 directions are secret. Parliament has never been told about their use and there has never been a debate about their use. No oversight has ever taken place other than the internal oversight conducted by the Intelligence Services Commissioner who was forbidden to write about them in his annual report.
2. There are 23 Section 94 directions currently in place. 15 are specifically for the collection and retention of bulk communications data. 8 are to enable PECNS to provide services in emergencies, for civil contingency purposes or to keep people and operations secure for the agencies.
3. They have actively been used since 2001, although one dates back to 1998.
4. GCHQ and MI5 are the only two of the three intelligence agencies to use Section 94 directions. The Home Secretary is responsible for authorising the directions for MI5. The Foreign Secretary has been responsible for authorising the directions for GCHQ.
5. Data is held for a year by both agencies and is subject to automatic deletion on a daily basis.
6. In 2015 GCHQ identified 141, 251 communications addresses or identifiers of interest, whilst MI5 made 20,042 applications to access communications data, which related to 122,579 items of communications data.
7. Until this report there was not any comprehensive record of the directions which had been given.
8. PECN who were/are under a Section 94 direction were all under an obligation to comply with it and were not permitted to disclose the direction – if they did/do they would be going against the interests of national security.
9. Historical documents going back 12 years reveal that the Home Office after a process of legal analysis decided to use Section 94 directions rather than use RIPA Part 1, Chapter 2 authorisations. It appears that the decision was taken for three reasons.
   1. Section 94 directions do not require any other official other than the Home Secretary to approve their use
   2. Once a direction is given there is no expiration date, unlike RIPA Part 1, Chapter 2 directions which require annual renewal.
   3. Section 94 directions are secret – the Minister would not ever be required to reveal the warrant to Parliament or the House of Lords.
10. IOCCO is of the opinion that this correspondence reveals that “consideration of the legal issues” was “incomplete”.
11. The historic correspondence shows that bulk communications data was not considered to be personal data. IOCCO state that they consider communications data to be personal data.
12. IOCCO is clear that it would be helpful if policy clarified “whether it is necessary (or appropriate) for the agencies to access the bulk communications data pursuant to section 94 directions where there is no need to carry out complex analysis.” It is made clear that where there is “an immediate and credible threat to national security” there is an operational requirement but that “it is arguably not the case when dealing with more routine requests which, within the agencies, form the majority.”

In relation to the ongoing scrutiny of the Investigatory Powers (IP) Bill which will be debated in committee of the whole house in the House of Lords next week and the week after, IOCCO’s report gives a detailed insight into the truth behind the way surveillance capabilities have been used to monitor the telephone and internet activity of all citizens predominantly since 2001.

David Anderson QC is currently undertaking his speedy review into bulk powers to inform the conversation, scrutiny and ultimate legislation of these powers. IOCCOs report provides detail which he will undoubtedly consider.

From our perspective, we welcome the report, we welcome the transparency and the recommendations which will ensure that the secret nature of these directions – should they remain law – is not permitted any further.

Section 94 is clearly one of, if not the most insidious tool available to the intelligence agencies. Furthermore the approach towards the use of the capability as revealed by the historic correspondence shows that the culture of do but don’t tell within the Home Office has ensured that secrecy has been embedded in government departments and not just within the intelligence agencies. The Commissioner’s conclusion that “consideration of the legal issues” was “incomplete” should raise profound concern.

Throughout the scrutiny of the IP Bill we have stressed that Ministers are not required to come and tell Parliament or the House of Lords about warrants relating to surveillance. We gave evidence to the Joint Committee on the Investigatory Powers Bill which made that clear. Throughout we have been told that we are wrong and that Ministers are answerable to Parliament and that if they do things the country doesn’t like then we can vote them out. This report shows in black and white that that is simply not the case. Rather than use a warrant which required sign of by another official and annual renewal, the Home Office chose to use Section 94, to avoid any external oversight or sign off, to avoid the inconvenience of renewal of the direction and to avoid the need to publicly or even privately declare the direction existed.

We welcome the move towards transparency we have seen but we stand by our call that the “double lock” in the IP Bill MUST be a process of equal double authorisation for both the Minister and the Judicial Commissioner. The review and approve lock currently in the Bill may be an improvement to the solo sign off this report has highlighted, but it is far off the mark when it comes to ensuring that surveillance against all UK citizens is subject to the strongest independent authorisation methods available.

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