TrustHLT/LaCour huggingface dataset:
Paulo Pinto de Albuquerque (Judge): In Liberty, the court stated, and I'm quoting the court, that it does not consider that there is any ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications on the one end and more general programs of surveillance on the other.
Paulo Pinto de Albuquerque (Judge): This is Liberty, paragraph 63.
Paulo Pinto de Albuquerque (Judge): My question to the government and to the parties is this one.
Paulo Pinto de Albuquerque (Judge): Is the government proposing to depart from Liberty from this principle?
Paulo Pinto de Albuquerque (Judge): In Zakharov and in Szábo, this principle was confirmed.
Paulo Pinto de Albuquerque (Judge): In fact, in Szábo, in Zakharov, the criteria, the Weber criteria, were restated.
Paulo Pinto de Albuquerque (Judge): And my question is, from the perspective of the government and, again, the applicants, do the Zakharov criteria, paragraph 231, apply to both surveillance?
Paulo Pinto de Albuquerque (Judge): This is, for instance, the position of the French government in this case, as third party.
Paulo Pinto de Albuquerque (Judge): My second question is related to the changes in the investigatory power set, 2016.
Paulo Pinto de Albuquerque (Judge): What was the rationale behind the introduction of the ex ante judicial authorization in this act of 2016?
Paulo Pinto de Albuquerque (Judge): Is there any reason not to trust the Secretary of State or to trust more the judges in terms of ex ante control of the proportionality of this interference?
Paulo Pinto de Albuquerque (Judge): The third question relates to the legal status of the interception of communications commissioner.
Paulo Pinto de Albuquerque (Judge): Is he not appointed and freely dismissed by the prime minister?
Paulo Pinto de Albuquerque (Judge): Is this a part time job for the commissioner?
Paulo Pinto de Albuquerque (Judge): Who provides for his staff, for the staff of the commissioner?
Paulo Pinto de Albuquerque (Judge): The fourth question relates to the intelligence sharing.
Paulo Pinto de Albuquerque (Judge): In the framework of intelligence sharing with non-council of Europe states, is there a legal obligation to check whether the foreign data recipient or data sender offers minimum safeguards equivalent to those of the convention?
Paulo Pinto de Albuquerque (Judge): I note this, and this is a question that is related, of course, to the conclusion of the Intelligence and Security Committee of the Parliament, of Parliament, which has concluded in its 2016 report that there was a legal vacuum in this regard.
Paulo Pinto de Albuquerque (Judge): So I would like you to comment on this.
Paulo Pinto de Albuquerque (Judge): And final question, is there a legal obligation and final question, if this court, the European Court of Human Rights, sends a confidential message to a lawyer in London, can the respondent government guarantee that it would not be caught, our message from this court to a lawyer in London would not be caught and examined by the British intelligence?
Paulo Pinto de Albuquerque (Judge): And this assuming that, of course, this message is strictly confidential.
Paulo Pinto de Albuquerque (Judge): It's between the court and the lawyer in London.
Angelika Nußberger (JudgeP): Thank you. Judge Eicke.
Tim Eicke (Judge): Thank you very much, Madam President.
Tim Eicke (Judge): One, I have two or three questions.
Tim Eicke (Judge): One is a question of clarification.
Tim Eicke (Judge): Mr. Jaffey referred to the Human Rights Watch judgment
Tim Eicke (Judge): of the IPT, which, as I understood him, is suggested to have tightened access to that tribunal.
Tim Eicke (Judge): Can I just clarify whether he's referring to the 2016 Human Rights Watch judgment in which it was dealing with, I think, 660 applications?
Tim Eicke (Judge): The second question related to that is, and it also relates to the question posed by my colleague, Judge De Gaetano, is, if I recall rightly, in that judgment, the tribunal was confronted with the question of whether applicants who were located outside the territorial jurisdiction of the United Kingdom were in fact within its jurisdiction for the purposes of its Human Rights Act jurisdiction.
Tim Eicke (Judge): Now, I appreciate in this case, the government hasn't raised territorial jurisdiction.
Tim Eicke (Judge): The chamber assumed it.
Tim Eicke (Judge): But as we're in the Grand Chamber and we're invited to consider the scheme afresh, I wonder whether both parties could reflect on the question whether, in fact, our approach in the Bletchley judgment, where we said that the scope of the court's jurisdiction is determined by the convention and not by the party's submissions in a particular case, and the mere absence of a plea of incompatibility cannot extend jurisdiction, whether that means that, in fact, there is an issue here about jurisdiction which the court should concern itself with, whether, one, by way of admissibility, or two, and this reflects the question of my colleague, Judge De Gaetano, whether, in fact, the focus of our analysis needs to be in relation to those who are within the jurisdiction, and external communication insofar as it concerns those who are outside the jurisdiction is not within the scope of the case before us.
Tim Eicke (Judge): And the third question, again, equally going to principle, is, of course, our case law so far has largely focused on the question of this issue, interception in the context of the right to respect for private life under Article 8, but, of course, a large number of the applicants are, in fact, corporate bodies, and I don't mean corporate in the commercial sense, but corporate in the non-natural person sense, and I would therefore ask both parties to reflect on the question whether, in fact, those applicants can have a right to respect for private life, and if they cannot, whether this falls, for example, under the heading of correspondence, and if so, whether the same tests apply.
Angelika Nußberger (JudgeP): As there were very many questions, I will give you up to 25 minutes for replying.
AP1 (Applicant): Thank you very much for the additional time, which is much appreciated.
AP1 (Applicant): I'll start, if I may, with Vice President Spano's questions.
AP1 (Applicant): The first question was directed at Sir James Eadie, and the second question related to the requirements of EU law. Under EU law, a requirement of control by a judge or
AP1 (Applicant): other independent person has been developed. To what extent is that relevant to this court's
AP1 (Applicant): consideration? Well, it's relevant to the extent of the quality of the logic and the reasoning of
AP1 (Applicant): the Court of Justice's analysis. The Court of Justice considered that in the circumstances
AP1 (Applicant): of data retention on a large scale, with then the possibility, for example, of access by the police, that that type of safeguard was required. Now here, I say the position is stronger,
AP1 (Applicant): because for access for the purposes of a criminal investigation, a criminal investigation will normally lead up to a prosecution, and the communications data which is obtained will be admitted in that prosecution, and the defendant, whose communications data it is, will have the opportunity to object and ask for the exclusion of that evidence before the court, or to make a separate challenge. But where the same exercise is carried out for the purposes of an intelligence
AP1 (Applicant): operation, and is never disclosed to the person whose data is obtained, then their opportunity of obtaining redress is much less, and therefore the importance of ex ante judicial authorization, or independent authorization, is in the applicant's submission much greater.
AP1 (Applicant): The next group of questions came from Vice President DiGitano. The first question was
AP1 (Applicant): about internal and external communications. Do they deserve less protection if they are external?
AP1 (Applicant): Well, the government's answer to that question is yes, even if the government is targeting a known individual who happens to be abroad. The second question concerned the economic well-being
AP1 (Applicant): ground on which bulk surveillance can be authorized. That does permit economic espionage,
AP1 (Applicant): so long as, and the wording of RIPA was amended so as to require it to be relevant to the national security of the United Kingdom. So it permits economic espionage so long as there is a national
AP1 (Applicant): security link. So, for example, one of the categories in the certificate which was published
AP1 (Applicant): by the Parliamentary Intelligence and Security Committee was so-called strategic environmental issues as being a matter of properly subject to bulk surveillance. So, for example, the types of
AP1 (Applicant): economic espionage which could occur might relate to, for example, arms and weapons transactions, oil, gas, renewable transactions. Whenever you can show that the economic well-being of the United
AP1 (Applicant): Kingdom might be affected, and you can show that there is a plausible national security link to that economic well-being issue. The third question related to the rationale of the provision in the
AP1 (Applicant): Investigatory Powers Act 2016 for notification to be provided to victims in the case of a serious error. Well, the 2016 Act, of course, is not directly before the court. The application
AP1 (Applicant): is concerned the past and RIPA, but there is an intimate link between that type of notification provision and the effectiveness of a scheme of supervision and oversight. The reason for that
AP1 (Applicant): is because the commissioner, if the commissioner uncovers an error, has no power to refer a case to the Investigatory Powers Tribunal. So, if the commissioner, as part of his audit work,
AP1 (Applicant): uncovers some illegality, he has no mechanism under RIPA to report it to the victim. Indeed,
AP1 (Applicant): it would be a criminal offense for him to do so under RIPA. That means that the victim will,
AP1 (Applicant): in practice, never know, and the victim, unless, for example, there has been a leak of information to the newspapers, as happened with Edward Snowden, will not know that perhaps they ought to take their case to the Investigatory Powers Tribunal. And that is why a system of notification
AP1 (Applicant): is, in the applicant's submission, essential. Now, of course, that provision in the Investigatory
AP1 (Applicant): Powers Act is extremely narrow. One of the things which it says, as the court will have noted,
AP1 (Applicant): is that the fact that the commissioner has identified a breach of the European Convention on Human Rights is not, of itself, enough to justify a notification. Some additional
AP1 (Applicant): factor is required, but that's not a matter before the court. But even that is a very
AP1 (Applicant): narrow and inadequate provision. Judge Grozev then asked a question about how reasonable
AP1 (Applicant): suspicion might be applied in the context of a national security investigation. The
AP1 (Applicant): answer to that is it's reasonable grounds to suspect that a person has been involved in activities harmful to United Kingdom national security. Now, sometimes, that person may
AP1 (Applicant): also be entirely innocent of any criminal offence. They may be involved in activities
AP1 (Applicant): which are harmful to UK national security or which engage UK national security issues without being criminal. But it's nonetheless still possible, in our submission, to apply
AP1 (Applicant): a test of reasonable suspicion to a national security investigation or inquiry as well as to a traditional criminal inquiry. And secondly, there's a question of whether or
AP1 (Applicant): not the bearer is named in the warrant. That's, of course, a matter for the government, but
AP1 (Applicant): it has been the government's consistent position throughout that a bearer is not named in the warrant. That is a matter for the persons who execute the warrant, the Security and
AP1 (Applicant): Intelligence Services, to select the bearers. Judge Pavley's first question related to
AP1 (Applicant): the data retention period. The maximum period that is set out in the Code of Practice, which
AP1 (Applicant): is paragraph 7.9 of the Interception Code, which is tab 33 of the core bundle, is normally
AP1 (Applicant): no longer than two years. So that's the maximum period you see on the face of any
AP1 (Applicant): published guidance. What we are told in the government's observations is that, in reality,
AP1 (Applicant): communications data is kept for months or perhaps a year, and content is kept, as Sir James said in his oral submissions, for a period of days ordinarily. And one imagines
AP1 (Applicant): that is because of the sheer volume of content means that it would be very difficult to retain for exceptionally long periods on the current state of technology. But no doubt that will
AP1 (Applicant): continue to change over time. But because communications data can be stored much more
AP1 (Applicant): compactly, GCHQ are able to, and they do, keep all of the communications data, which they can keep their hands on, for a lengthy period. Judge Pavley then asked, how is bulk
AP1 (Applicant): information using a strong selector different from targeted surveillance, for example, with an individual traditional warrant under Section 8.1 of RIPA? Well, the answer to that in our
AP1 (Applicant): submission is it isn't. If you have a specific target in mind, a particular person or a particular
AP1 (Applicant): place, you can, if you want to, go and get a targeted warrant under Section 8.1. One
AP1 (Applicant): of our criticisms of this scheme is that the government don't have to, even if they have identified a specific individual that they wish to target.
AP1 (Applicant): Turning then to Judge Pinto de Albuquerque's questions, the first one related to Liberty and Zakharoff. And if I can summarize, I think the question was whether or not Zakharoff
AP1 (Applicant): and the principles identified by the Grand Chamber in Zakharoff ought to apply to bulk interception. Well, the applicant's case is that Zakharoff is in fact properly analyzed,
AP1 (Applicant): a case which involved potential bulk surveillance itself. One of the regimes that was considered
AP1 (Applicant): by the Grand Chamber permitted what the Grand Chamber referred to as area surveillance.
AP1 (Applicant): So the interception of all communications in a particular area, even if the particular – not everyone in that area was under suspicion of any wrongdoing. That's paragraph 265
AP1 (Applicant): of the Grand Chamber's judgment. And so we say the Grand Chamber had well in mind
AP1 (Applicant): that the principles that it was identifying and developing in Zakharoff would be applied to bulk regimes, because that was in fact a bulk regime itself.
AP1 (Applicant): The second question related to the rationale for ex ante judicial control in the Investigatory Powers Act. Well, the rationale why the government has decided to introduce ex ante judicial
AP1 (Applicant): approval of warrants is no doubt that it increased the quality and effectiveness of the safeguard.
AP1 (Applicant): Now the type of ex ante judicial approval in the 2016 Act is somewhat inadequate. It's
AP1 (Applicant): to a low judicial review standard, and in any event, it does not apply to selectors and it does not apply to bearers. They may be problems for another day. But the fact
AP1 (Applicant): is that the government has accepted the principle, and so has the UK Parliament, that prior judicial control is a significant safeguard that ought to be in place going forward.
AP1 (Applicant): The third question related to the status of the Interception of Communications Commissioner.
AP1 (Applicant): Well, it's a job which has always been given to a retired senior judge. The judge works
AP1 (Applicant): part time. His staffing was previously extremely small. I make no criticism whatsoever of those
AP1 (Applicant): judges, but I do criticise the effectiveness of the system of oversight. That's because
AP1 (Applicant): in a system operating involving the scale of interception, about which the court has heard today, even on the government's case, just looking at communications data of people in the United Kingdom, thousands of requests each week, a single part time judge with a small secretariat cannot hope to exercise meaningful oversight.
AP1 (Applicant): The truth is that to have an effective system of oversight, particularly if, as in the UK, there is no ex ante judicial control, what you need is you need a watchdog. You need
AP1 (Applicant): the type of people who have experience and competence at the work of the security and intelligence services who can delve in an investigatory way in depth into the work of the agencies. The nature of the UK regime, which is of a retired judge in an adversarial
AP1 (Applicant): legal system, is not necessarily the best model, and it's certainly not adequate in circumstances where there's no ex ante control.
AP1 (Applicant): The final question asked by Judge Pinter de Albuquerque was if the court sent a message, for example, to a lawyer in the United Kingdom, is there any guarantee it would not be caught and examined? The answer to that is no. And the first section referred in its judgment
AP1 (Applicant): to the decision of the Investigatory Powers Tribunal in a case called Belhage, in which I was instructed for the claimant and Sir James Eadie acted for the government. And
AP1 (Applicant): the first section summarized the facts at paragraph 47 and the decision at 92 to 95.
AP1 (Applicant): It involved two Libyan families who were rendered back to Colonel Gaddafi in an operation run by the United States CIA and the United Kingdom Secret Intelligence Service. They were bringing
AP1 (Applicant): a tort claim against the United Kingdom in the English courts, and they also brought a claim to the Investigatory Powers Tribunal to make sure that their privileged legal communications with me and those instructing me were not interfered with. The IPT investigated, and
AP1 (Applicant): the IPT found that GCHQ had unlawfully intercepted legally professionally privileged material belonging to my clients and made a finding to that effect. The UK system for the protection
AP1 (Applicant): of legally privileged material was quashed. The government eventually conceded that it
AP1 (Applicant): was inadequate. The truth is, lawyers and NGOs are of interest to the security and intelligence
AP1 (Applicant): services because of who our clients are and the people that we assist and represent. And
AP1 (Applicant): therefore, when surveillance is being carried out in bulk, an exceptionally strong system of safeguards is required in order to protect the legitimate interests of those we seek to assist and represent. The short answer to the question is no, there is no guarantee.
AP1 (Applicant): Judge Iker then first asked a question about the Human Rights Watch judgment of the Investigatory Powers Tribunal, whether that was the 2016 judgment. That's correct. And then asked
AP1 (Applicant): a question about the extent to which the IPT's view about the territorial jurisdiction of the convention was correct. As the court may know, that Human Rights Watch decision is
AP1 (Applicant): the subject of a separate application to this court, which of course has not yet been determined.
AP1 (Applicant): If it would assist the court, that application sets out in summary form why the IPT's decision was incorrect in the circumstances. But if the court is considering making a ruling on
AP1 (Applicant): the wider question of territorial jurisdiction, which wasn't argued before the first section hasn't previously been raised by the government, the applicant would appreciate the prospect of being able to put in some brief written submissions on that question because of its wider importance to the convention system. But in very brief terms, what the IPT decided,
AP1 (Applicant): perhaps slightly strangely, is that anyone who was not physically inside the United Kingdom had no protection against surveillance under the convention whatsoever. So, here today,
AP1 (Applicant): standing before the court, if there were to be interception of the emails which I send on the train on the way home before the Channel Tunnel, I and my clients have no Article 8 rights. Once we're through the Channel Tunnel, we get some rights again. Now, is that correct
AP1 (Applicant): when the surveillance is being conducted at the direction of a minister and an agency in the United Kingdom and the surveillance is actually being carried out on optic fibres within the United Kingdom? Now, the applicant said the answer to that is clearly no. It
AP1 (Applicant): engages the United Kingdom's state responsibility and the act of surveillance is being carried out in the United Kingdom. The processing of the data is carried out in the United Kingdom.
AP1 (Applicant): The interference with privacy is carried out in the United Kingdom.
AP1 (Applicant): Judge Iker then asked a question about corporate bodies and human rights. Corporate bodies,
AP1 (Applicant): of course, don't have a right to private life in the same way as natural people. But the
AP1 (Applicant): right in issue in Article 8 is the right to private and family life home, and I emphasise correspondence. And corporate bodies have just as much a right to protection of their
AP1 (Applicant): correspondence, whether the corporate body is a company, a law firm, an NGO, and my submission doesn't matter. Now, that proposition was accepted, we say, in liberty in the United
AP1 (Applicant): Kingdom, where all of the claimants were NGOs, and the logic behind it has been explained by the court in cases like Tara Sassag in Hungary and Magyar Helsinki Pozsotag in Hungary, where the role of NGOs and the fact that those NGOs have convention rights which ought to be protected, including rights under Articles 8 and 10, is explained by the court. So we
AP1 (Applicant): say that the rights of the applicants before the court, most of whom who are not individuals, are most certainly engaged by this regime. Yes, Mr. Heaton reminds me that the same point
AP1 (Applicant): is made by this court in the Association for European Integration and Bulgaria case at paragraph 60. If I may finally just deal with a few points in reply to Sir James Eadie.
AP1 (Applicant): The applicants don't dispute that if you collect everyone's communications and if you automatically process them, the intelligence services will find material of use in there, just as the police would have found it useful to have a mandatory national DNA or fingerprint database in S&MARPA and MK in France. But usefulness and value is not the same thing as strict
AP1 (Applicant): necessity in a democratic society. Now, Sir James then sought to downplay the intrusiveness
AP1 (Applicant): of the processes that are taking place. He referred to the collection of bulk data as
AP1 (Applicant): being nothing more than an amorphous soup. Well, in the past, when a huge amount of data
AP1 (Applicant): might be collected, but it would require a human to analyze and process it before it was meaningful, that might be correct. But the intrusiveness of collecting bulk data
AP1 (Applicant): is vastly increased by the power of modern search analysis and profiling techniques.
AP1 (Applicant): So the Internet is an amorphous soup until you have Google. Then the Internet is no longer
AP1 (Applicant): an amorphous soup. It becomes not a soup, but a well-organized and indexed library in
AP1 (Applicant): which you can rapidly find anything you want. It is unreal in the applicant's submission
AP1 (Applicant): to suggest that collecting and analyzing data on this scale is not a significant interference under Article 8. And it is telling that the United Kingdom government persists in making
AP1 (Applicant): that submission. Sir James also dealt with the issue of oversight,
AP1 (Applicant): which I've already addressed in response to some of the Court's questions. The submission