TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): There is no convincing submission to support the respondent's assertion that the Weber safeguards would in some way be overbroad if applied to third country intercept data.
AP2 (Applicant): The breadth of the potential safeguards requires only reflects the breadth of what foreign intelligence services may now be able to scoop up in states to which the Council of Europe standards do not directly apply.
AP2 (Applicant): And the extent and degree of intrusion here is of a significantly greater order of magnitude, even than the Weber case, which concerned only up to 10% of all communications.
AP2 (Applicant): So we develop our submission about why the Weber safeguards and additional protections highlighted with the rows are not satisfied by the legal regime, which governs access to third party interception data in paragraphs 138 to 145 of our consolidated submissions.
AP2 (Applicant): The consequence of this is that the risk of widespread interferences of communications is very grave and virtually legally unconstrained.
AP2 (Applicant): And this matters a great deal because without a clear and accessible legal framework, there is an obvious danger that domestic protections for private communications can be circumvented by the use of third party interception data from states where Council of Europe standards do not apply.
AP2 (Applicant): And this is a particular concern for journalists and human rights organizations, such as those before the court, because it may have a chilling effect on important political communication, which is not only the heart of a democratic society, but is vital for the protection of such a society.
AP2 (Applicant): And it is no answer to this concern to say simply that access to foreign security services intercept is not in fact used to circumvent the existing legal controls in the United Kingdom, or that it would be a public law wrong if it were, because there is no public or accessible legal framework which can make this assurance good, and because, of course, no one knows the circumstances of an individual case.
AP2 (Applicant): So even if it is in fact the position, and on this the applicants cannot and therefore do not make any submissions, that access is not misused, nonetheless, access to interception by the UK intelligence service still violates Article 8, because it is not clearly and accessibly prescribed by law.
AP2 (Applicant): I turn very briefly in view of the time to the issue of victim status.
AP2 (Applicant): The court's case law on this has been clarified by the judgment in Zakharov, and the Zakharov criteria are clearly satisfied in this case.
AP2 (Applicant): It is in fact known and accepted that two of the parties before the court, that's Amnesty International and the Legal Resources Centre, were victims of interception under bulk interception powers.
AP2 (Applicant): And the other applicants are at a genuine risk of being victims in a similar fashion, given their global public interest activities in the very broad range of persons and organisations with whom they are in contact.
AP2 (Applicant): And as I've explained, the risk of third party intercept data being obtained and used by the UK intelligence services is the same, or possibly broader.
AP2 (Applicant): We are talking about the same data being obtained, but simply by a different route.
AP2 (Applicant): And this is not a case where there are any adequate remedies available under domestic law, for all the reasons which Ms. Rose has mentioned and which are set out
AP2 (Applicant): in our written observations at paragraphs 165 to 71, and 181 to 197.
AP2 (Applicant): That leads me then to the issue of exhaustion of remedies, which is an entirely academic point in this case, because some of the parties before the court did seek to use the inadequate IPT procedures.
AP2 (Applicant): And for those who did not, I say three things.
AP2 (Applicant): They relied on the Kennedy observations, which were the law at the time the application was introduced, set out in 166 of our consolidated submissions.
AP2 (Applicant): It would undermine legal certainty for the court to close its doors at this very late stage to the applicants who came here relying on its clear jurisprudence.
AP2 (Applicant): In any event, given that some parties did go to the IPT, the court can be satisfied that the concerns expressed in Kennedy were well-founded, as illustrated by the procedures in this case.
AP2 (Applicant): And those proceedings also illustrate that we would still be here, even if all the applicants had pursued that remedy first.
AP2 (Applicant): And I therefore invite you to hold that there is no exhaustion issue.
AP2 (Applicant): All the applicants have complied with the court's requirements in that respect.
Linos-Alexandre Sicilianos (JudgeP): I now invite the judges of the chamber wishing to do so to put their questions to the parties.
Linos-Alexandre Sicilianos (JudgeP): Judge Koskelo please.
Pauliine Koskelo (Judge): I would like to pose three questions or questions on three different aspects of the case.
Pauliine Koskelo (Judge): The first one relates to interception.
Pauliine Koskelo (Judge): Now, I understand that in order for this interception to, bulk interception to operate, there must be in place a permanent technical facility or gateway which is installed in the fiber optic cable system, which permits the intelligence services to access transmission flows in a direct manner.
Pauliine Koskelo (Judge): And of course, we understand that this interception facility may be activated on the basis of a warrant.
Pauliine Koskelo (Judge): What I would like to ask is who controls the actual, let's say, activation or deactivation of the connection to the interception facility?
Pauliine Koskelo (Judge): That is to say, who activates and deactivates the actual flow of communications toward interception?
Pauliine Koskelo (Judge): Are the intelligence services themselves directly in charge of, let's say, turning the interception facility on and off?
Pauliine Koskelo (Judge): Or is there some other intervening body at this stage?
Pauliine Koskelo (Judge): The second question regarding the interceptions phase that I would like to pose concerns cloud services.
Pauliine Koskelo (Judge): So is it correct to assume that documents, photos, et cetera, which are saved in a cloud service that is based outside the UK would be regarded as an external communication for the purposes of the RIPA regime, RIPA 8.4 regime?
Pauliine Koskelo (Judge): My second line of questions is about the interception and my questions concern the warrant and the certificate that are required for the 8.4, the RIPA 8.4 regime.
Pauliine Koskelo (Judge): Now, I note that the applicants in their joint submissions, paragraphs 120 to 122, argue that, in fact, there is a rolling program of indefinite authorization in place.
Pauliine Koskelo (Judge): And this argument is based on two things.
Pauliine Koskelo (Judge): The first point is that the bulk interception warrant can be renewed without any limits.
Pauliine Koskelo (Judge): It has a limited duration, but it can be renewed without any definite limits.
Pauliine Koskelo (Judge): And the second point they make is that the ISC has reported that only a single certificate has ever been issued, a single certificate expressed in very general terms.
Pauliine Koskelo (Judge): In other words, what the applicants, as I understand, contend is that there is, in fact, sort of a continuous recycling of a standard kind of warrant and a standard kind of certificate.
Pauliine Koskelo (Judge): Now, I would like to know if the government is able to confirm or refute this or to offer any other comments.
Pauliine Koskelo (Judge): And the third issue I would like to address are the safeguards that are applicable after the interception.
Pauliine Koskelo (Judge): Now, we understand that the data which will be included in the index of documents that will be available, potentially available for examination by a human analyst, that data is identified through the application of simple selectors and more complex search terms.
Pauliine Koskelo (Judge): We also note, however, that in a report from 2015, the Intelligence and Security Committee of the Parliament noted that from the evidence we have taken, it appears that neither ministers nor the commissioners have any significant visibility on the selection and the application of the simple selectors or the search terms that are deployed.
Pauliine Koskelo (Judge): And I also understand that it is the case that the selection for human examination of the content of communications is carried out by the analysts themselves, who will be in charge of conducting the examination.
Pauliine Koskelo (Judge): That is to say that the analysts themselves are also in charge of determining the criteria for selection.
Pauliine Koskelo (Judge): Now, I would like to raise two questions in this context.
Pauliine Koskelo (Judge): Would it be possible to explain to us which are the safeguards that are in place in relation to the selection and the application of the selectors and the search terms that are applied to the data once it has been intercepted?
Pauliine Koskelo (Judge): And also, secondly, what are the safeguards in place to ensure that data which is not selected for examination and is due to be discarded, that such data might be subject to analysis with a view to identifying potential communication patterns, which could be of intelligence value?
Pauliine Koskelo (Judge): So which are safeguards applying to the data which is retained but not selected for human examination?
Pauliine Koskelo (Judge): In this context, I also note that or assume that as regards the filtering criteria and the selectors, there is a possibility for the commissioner and possibly the other supervisory organs to conduct an exposed review or supervision.
Pauliine Koskelo (Judge): But is there any body that is empowered to issue any binding instructions or orders regarding the selectors or filtering mechanisms that are used or may not be used?
Pauliine Koskelo (Judge): So is there any sort of more robust regime for controlling the kind of selectors that are, in fact, applied, given that in the first place, it is a matter for the analysts to determine the selectors?
Pauliine Koskelo (Judge): So these would be my questions.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Judge Harutyunyan.
Armen Harutyunyan (Judge): I have one question, which is addressed to the government.
Armen Harutyunyan (Judge): When considering the general safeguards in relation to the destruction of intercepted material, as soon as it is no longer, I am quoting, necessary for any of the authorized purposes provided by the section 15.3 of the Regulation of Investigatory Powers Act, and section 15.4 provides the relevant definition of the term necessary for the authorized purpose.
Armen Harutyunyan (Judge): This includes the rather broad reference to retention being necessary if, and again I quote, it is likely to become necessary.
Armen Harutyunyan (Judge): What safeguards, if any, are there to limit and or supervise the application of this criteria?
Linos-Alexandre Sicilianos (JudgeP): Judge Eicke, please.
Tim Eicke (Judge): Thank you, Mr. President.
Tim Eicke (Judge): I have three questions.
Tim Eicke (Judge): The first is turning to the safeguards relating to related communications data intercepted under a Section 8-4 warrant, which Mr. Eadie explained again this morning.
Tim Eicke (Judge): And we've seen in the written observations that the safeguards provided by Section 16 of the Act don't apply.
Tim Eicke (Judge): And of course, the submission is, as I understand it, that they don't apply, at least in part, because if they were to apply, it would be more difficult or impossible to make the Section 16 safeguards work for content data, in that it would make it more difficult or impossible to determine whether material was, in fact, referable to an individual known to be in the British Isles.
Tim Eicke (Judge): If one, however, looks at the definition of communications data set out in Chapter 2 of the 2015 Acquisition and Disclosure of Communications Data Code of Practice, can the government explain to us why any other than the most basic traffic data would be required in order to ensure that the Section 16 safeguards can be applied effectively?
Tim Eicke (Judge): And secondly, what safeguards are there to ensure that any communications data are not necessary for this purpose?
Tim Eicke (Judge): And I'm thinking particularly of service use information or subscriber information, insofar as that's captured, is, in fact, discarded and or is only otherwise used in a manner compatible with the requirements of the Convention.
Tim Eicke (Judge): The second question relates really to a factual clarification, I hope, of the reading of the Interception Code of Practice, the 2016 version.
Tim Eicke (Judge): Looking at the protection of journalistic sources under Article 10, could you confirm whether paragraphs 4.28 to 4.31 of that code
Tim Eicke (Judge): are said also to apply to confidential journalistic material, despite the clear distinction drawn in paragraph 4.26 between confidential journalistic material on the one hand and confidential personal information on the other, and the apparent limitation of those paragraphs to, I quote, confidential personal information, end quote, or quote, confidential information, close quote?
Tim Eicke (Judge): And finally, the applicants made no oral submissions this morning in relation to the complaint under chapter 2, in relation to chapter 2, section 22 of RIPA.
Tim Eicke (Judge): Could I just ask for confirmation whether that continues to be pursued?
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Judge Pardalos.
Kristina Pardalos (Judge): I have a question for the government.
Kristina Pardalos (Judge): Staying briefly with Chapter 12 of the Interception Code, is it the government's case that paragraph 12.5 of the 2016 Code addresses the concern expressed by the IPT in paragraph 53 of its December 2014 judgments, and I quote from the judgment, there ought to be introduced a procedure whereby any such request, a request in absence of a RIPA warrant, if made when referred to the Secretary of State, must address the issue of Section 16.3?
Kristina Pardalos (Judge): Thank you.
Ksenija Turković (Judge): I would like to ask a question related to acquisition of communications data that is regulated in Chapter 2 of RIPA, which sets out the framework under which public authorities may acquire communications data from CSPS.
Ksenija Turković (Judge): And I'm asking that question to the government.
Ksenija Turković (Judge): The three questions related to that issue that were not sufficiently dealt with in submissions and are related to how the regime that is envisaged in Chapter 2 is actually satisfying the requirements of being in accordance with the law and or necessity.
Ksenija Turković (Judge): In particular, when we consider the large number of relevant public authorities and or purposes, the lack of independence of the designated person, and the apparent absence of any guidance related to the examination disclosure other than to the third states, acquisition and or destruction of communications data.
Ksenija Turković (Judge): This is the question related to Chapter 2, as I have said.
Ksenija Turković (Judge): Also in terms of the admissibility, the government is proposing that we should deviate from the conclusions that we have taken, that the Court has taken in the Kennedy judgment, suggesting that IPT proceedings now represent sufficient remedy.
Ksenija Turković (Judge): Kennedy judgment was based on burden versus UK.
Ksenija Turković (Judge): Is the government suggesting that IPT is representing better guarantees than the regular courts in the UK?
Ksenija Turković (Judge): Or is the government suggesting that in general we should not adhere to burden versus UK anymore?
Ksenija Turković (Judge): And could government substantiate in more details why we should do that?
Ksenija Turković (Judge): How many times IPT made suggestions to the Parliament and the Parliament followed that?
Ksenija Turković (Judge): And could you explain, is this what you are suggesting in accordance with the sovereignty of the Parliament and is following that doctrine?
Ksenija Turković (Judge): So we have heard the question related to the warrant and for how long the warrant and whether the warrant could be actually extended indefinitely.
Ksenija Turković (Judge): The same question goes for the retention of data.
Ksenija Turković (Judge): There are limits for the retention of data, but it seems that the retention could be prolonged indefinitely.
Ksenija Turković (Judge): So how that could be justified.
Ksenija Turković (Judge): And then, I don't know whether you can say that, but actually all the connections that are going on under the surveillance or we know that some of the connections are not under the surveillance through which internet is going.
Ksenija Turković (Judge): And then, if the warrant is issued for national security purposes, could the data later on be reviewed for other purposes that are identified in law?
Ksenija Turković (Judge): And is the purpose of economic well-being in accordance with the Convention standards?
Linos-Alexandre Sicilianos (JudgeP): I would like to ask also a couple of questions, beginning with a follow-up to what Judge Tukovic has just said about non-exertion.
Linos-Alexandre Sicilianos (JudgeP): We are aware that the court considered in Kennedy, especially in paragraph 109, that, and I quote, the applicant was not required to advance his complaint regarding the general compliance of the RIPA regime for internal communications with Article 8, paragraph 2, before the IPT in order to satisfy the requirement under Article 35, para 1, that he exhaust domestic remedies.
Linos-Alexandre Sicilianos (JudgeP): This has been said in 2010.
Linos-Alexandre Sicilianos (JudgeP): The two first applications concerned were lodged in 2013 and 2014.
Linos-Alexandre Sicilianos (JudgeP): Could the government specify the changes between 2010 and 2013, 2014, that would justify to rule otherwise in the present case?
Linos-Alexandre Sicilianos (JudgeP): My second question concerns, it is addressed to both parties, and it concerns the new legislative framework of 2016.
Linos-Alexandre Sicilianos (JudgeP): And my question is, to what extent can the court take into account the new provisions in this particular case?
Linos-Alexandre Sicilianos (JudgeP): And finally, I have a question to the government in relation to the intelligence sharing issue.
Linos-Alexandre Sicilianos (JudgeP): It appears that chapter 12 of the Interception Code of Practice sets out guidance concerning the requesting and handling unanalyzed intercepted communications from a foreign government.
Linos-Alexandre Sicilianos (JudgeP): This raises two issues.
Linos-Alexandre Sicilianos (JudgeP): Are there any rules or guidelines on when or whether the intelligence services can accept unsolicited material from a foreign government?
Linos-Alexandre Sicilianos (JudgeP): And B, the safeguards in chapter 12 only appear to be connected with material from a foreign government identified as intercepted communication.
Linos-Alexandre Sicilianos (JudgeP): However, the government also appears to have intercepted that, to have accepted that in this context, it is not always possible to distinguish clearly between material that is intercepted material and that which is not.
Linos-Alexandre Sicilianos (JudgeP): What safeguards are there in relation to material received from a foreign government which is not intercepted material and or in relation to which it is unclear?
Linos-Alexandre Sicilianos (JudgeP): So the court will now withdraw for 30 minutes, following which the parties will have 30 minutes each to submit brief observations in reply to each other's submissions and to reply to questions from the judges.
Linos-Alexandre Sicilianos (JudgeP): I call Mr. Eadie.
GR1 (Government): I will try and focus on the numerous questions that have been asked.
GR1 (Government): The court is interested, it appears.
GR1 (Government): Can I start with Judge Costello's questions?
GR1 (Government): The first one related to and asked a technical question about how gateways on cables were activated and deactivated.
GR1 (Government): The answer, I think, to that question is that there is no independent body regulating that in the direct sense.
GR1 (Government): So the agencies tell the person operating the bearer that they have the warrant.
GR1 (Government): And they then turn it on and turn it off.
GR1 (Government): But there isn't independent oversight of that particular process, part of the process that's regulated effectively by the breadth and reach of the warrant.
GR1 (Government): In relation to cloud services, I'm very far beyond my pay grade in terms of how the technicalities of all this work.
GR1 (Government): But the documents held in the cloud are not, of course, communications.
GR1 (Government): So the only circumstance in which it would be interesting and live to examine that is in relation to the actual uploading of documentation onto the cloud.
GR1 (Government): And so far as that is concerned, the same constraints on selection and examination would apply as they apply to all other communications.
GR1 (Government): But it's as well, perhaps, to bear in mind that limit on the extent to which documents actually sitting in the cloud are or are not, as we suggest, communications.
GR1 (Government): The second raft of questions related to warrants and or certificates under section 8.4
GR1 (Government): and asked us to address more specifically the question of whether or not there is some form of rolling program or indefinite renewal without limits.
GR1 (Government): So far as warrants are concerned, those need to be renewed every six months.
GR1 (Government): The test, as you know, is a test that doesn't allow them to be renewed unless it's necessary and proportionate to do so.
GR1 (Government): And for that purpose, can I refer you to the 2016 code, paragraphs 6.22 to 6.24?
GR1 (Government): So that's the first part of the question that you asked on that front, which related to the warrants.
GR1 (Government): You also asked a question about certification and whether or not there was a single certificate.
GR1 (Government): The answer to that question is there is in a technically there is a single certificate.
GR1 (Government): And as you know, the function of the certificate is to describe the particular national security objectives that need to be pursued in relation to this regime.
GR1 (Government): But although there is technically a single certificate, it also is kept up to date and regularly reviewed.
GR1 (Government): Not surprisingly, it might be thought, because national security concerns and objectives change over time.
GR1 (Government): And again, if I can simply give you a reference without going to it, in the code itself, the 2016 code, see if you would, sorry, paragraph 6.14.
GR1 (Government): The third roster of questions asked by Judge Cascillo turned on the safeguards, or asked about the safeguards, on the selection and search terms that were used by analysts and referred to the Intelligence and Security Committee report of 2015.
GR1 (Government): So far as that is concerned, I think my answer to that is twofold.
GR1 (Government): Firstly, by reference to 7.15 of the code,
GR1 (Government): analysts who are using the databases and searching them in accordance with the search terms I identify are required to be trained and are required to justify every access, every examination that is made.
GR1 (Government): The standard that is there set out and that exists in the legislation anyway is that it's got to be necessary and proportionate for the examination in question to be made.
GR1 (Government): And that control and that test would operate to constrain not merely the actual basic access itself, but the manner in which that access was sought.
GR1 (Government): In other words, it would operate to control the search terms themselves.
GR1 (Government): 7.16 of the code also makes clear,