ENCROCHAT EXCLUSIVE: IPCO says 'NCA sought advice about obtaining a TEI warrant from outset'
THE independent body responsible for overseeing the fair use of covert investigative techniques has spoken about the National Crime Agency (NCA) application for the EncroChat warrants for the first time.
The Investigatory Powers Commissioners Office (IPCO) oversees the use of covert investigatory powers by more than 600 public authorities, including the UK’s intelligence agencies, law enforcement agencies, police, councils and prisons.
It has a team of 50 staff supporting the Investigatory Powers Commissioner, Sir Brian Leveson (above), who gave final clearance to the NCA to have a warrant to access real-time and historic EncroChat messages obtained from French and Dutch police after they intercepted the encrypted mobile phone network in April 2020.
French and Dutch cyber experts infiltrated the EncroChat system, used by 60,000 people worldwide and 9,000 in the UK, in April 2020.
They obtained historic images and messages sent but also monitored new ones sent in real time until June that year after the owners realised the compromise and shut down the platform, said to have been used exclusively by criminals, while a small number of non criminal users have since been confirmed.
The NCA was offered access by European counterparts to messages of UK based users if they could obtain a lawful warrant to access the information due to different laws in the UK about the use of intercepted data.
Retired Judge Leveson authorised the warrant and the NCA was provided with access to infiltrated data.
It led Operation Venetic, the country's biggest ever operation against organised crime networks, which has seen nearly 3,000 arrests, about 1,500 charges and more than 300 convictions already.
Sir Brian was persuaded to approve the NCA's application for a targeted equipment interference TEI warrant after further information provided by the agency after concerns were initially raised by Lord Anderson KC (above).
There is an ongoing hearing of the separate Investigatory Powers Tribunal (IPT) which is considering a complaint by ten people charged under Operation Venetic that the real-time evidence was a live intercept and is inadmissible in British Court and the NCA should have applied for a Targeted Intercept (TI) warrant.
The IPT heard claims from lawyers acting for the complainants that if the data was extracted directly from the EncroChat server it was a live intercept, but if it had been stored on the devices first it was classed as "targeted equipment interference," from which evidence can be used in British courts.
However, the tribunal heard the NCA claims the French have refused to reveal exactly how they carried out the hack for security purposes.
Lawyers for complainants argued the NCA therefore can't know if the data was stored on devices or came live from the server.
Before the complaint was made to the IPT Essex News and Investigations asked the IPCO about what advice it gave the NCA before it applied for the warrant.
We asked: "It has emerged in (crown) court (EncroChat cases) that the CPS advice to the NCA was initially that it may constitute a live intercept and may not be admissible.
"It has also emerged that, in many cases, the NCA does not have access to raw data but was just taking photographs of messages as they were sent.
"Can I please find out if the IPCO was involved in discussions with the NCA and CPS before the operation was launched and before charges were first brought?
"Did the IPCO offer any advice around whether it was a live interception?
"What is the IPCO view of whether the real-time messages being photographed was a live intercept or not and can you please explain the reasoning for this view?"
The IPCO response appears to suggest that the NCA's initial approach was not to seek advice from the IPCO on the type of warrant required, but it appears that it had already determined that it wanted a TEI, as it only appeared to ask for advice about that.
However, the IPCO response also supported this approach and the position of the NCA, saying it had been backed by the Court of Appeal, which it said had concluded that the right type of warrant had been sought during a crown court appeal that was determined before the IPT hearing started.
An IPCO spokeswoman said: "Consistent with IPCO’s statutory function to provide advice and guidance to public authorities relating to investigatory powers, the NCA approached IPCO for advice concerning a potential application for a targeted equipment interference warrant in relation to Operation Venetic. In order to ensure public authorities remain candid when engaging with IPCO as a regulator and in light of the ongoing prosecutions under Operation Venetic, it would be inappropriate for IPCO to comment on the detail of any advice that may have been given.
"However, as has been widely reported, an application for a targeted equipment interference warrant was approved by a Judicial Commissioner, Sir Kenneth Parker, and then again (following minor amendment) by the Investigatory Powers Commissioner, Sir Brian Leveson. A targeted equipment interference warrant can only authorise the interception of stored communications. The Court of Appeal has since confirmed that the interception of communications under Operation Venetic did not occur in relation to what is colloquially referred to as ‘live intercept’, but was limited to stored communications (see A, B, C, D, E v Regina  EWCA Crim 128).
"IPCO welcomes the clarity provided by the Court of Appeal regarding when communications should be considered 'stored'. We would refer you to the Court of Appeal’s judgment which explains the rationale behind its conclusion. That rationale is consistent with the Judicial Commissioners’ decision to approve the targeted equipment interference warrants."
Since the IPT hearing got underway last month we subsequently asked: "Could I please ask when the NCA first sought the advice from the IOPC about a potential targeted equipment interference warrant and before this did it ever seek advice on the type of warrant that would be required for Op Venetic such as a targeted intercept warrant or was its first approach solely about a targeted equipment interference warrant?"
The IPCO spokeswoman added: " I can confirm that the NCA first approached IPCO officials regarding Operation Venetic on 25 February 2020.
"As previously explained, in order to ensure that public authorities remain candid when engaging with IPCO and in the light of the various ongoing proceedings related to Operation Venetic, we are unable to comment further on any discussions that took place."
The IPCO initial response that appears to suggest that the NCA only asked for advice about a TEI warrant appears to be in line with arguments made by Matthew Ryder KC (above), who is acting for the complainants, during the IPT hearing last month.
He suggested that the NCA did not give the judicial commissioner, who authorised the NCA’s surveillance warrant, a full explanation of the basis of its understanding of how the French interception operation worked.
He also told the court that the NCA had decided that it wanted TEI warrant from the outset as it was the only warrant that would allow messages and images intercepted from EncroChat to be used as evidence in British courts.
He claimed an analysis of the Investigatory Powers Act showed that the correct warrant for the EncroChat operation, would have been a TI warrant, which would not allow real-time messages from EncroChat to be used as evidence here.
He told the tribunal: “The NCA started with the result they wanted and tried to fit that into the Investigatory Powers Act. They wanted a TEI and nothing else. Their motive was understandable. They wanted to make the intercept available in court.”
But, he said by seeking approval from Sir Brian without knowing how the technique was carried out “The obvious risk is that the warrant may be issued in error.”
However, The NCA continues to insist it did everything properly and the correct warrant was obtained.
The IPT hearing was adjourned and continues.