TrustHLT/LaCour huggingface dataset:
GR1 (Government): But quite apart from that, the constraints would be practically impossible, and thus insistence upon them would risk undermining a key element of the ability to protect the public.
GR1 (Government): And that's because under section 16, the Secretary of State is required personally to consider the necessity and proportionality of targeting a person in the British Islands on an individualised basis.
GR1 (Government): That's an exercise that can feasibly be done in relation even to up to 100 or so, or perhaps more, cases.
GR1 (Government): But it's not an exercise that could be done sensibly or feasibly or practically in relation to our CD, simply because of the volume of inquiries and searches that need to be made in that respect in relation to CD.
GR1 (Government): It's used, as we've explained in 146 of our observations, many thousands of times a week for those purposes in relation to individuals in the UK alone.
GR1 (Government): So it would be practically impossible to build that safeguard into the CD part of the regime.
GR1 (Government): But I emphasise again, the key safeguards remain and are in place in relation to the selection for examination and the actual examination of CD.
GR1 (Government): Sitting alongside the oversight exercised by the Commissioner, of course, is the Investigatory Powers Tribunal.
GR1 (Government): The first section rightly emphasised the IPT's extensive powers, its important role in analysing and elucidating the operation of secret surveillance regimes and its effectiveness as a remedy.
GR1 (Government): And the Liberty proceedings in this case vividly demonstrate that effectiveness.
GR1 (Government): It involved the detailed examination over about five days of the very issues now raised in this application.
GR1 (Government): The panel on the IPT was five, including two High Court judges.
GR1 (Government): It considered a large quantity of evidence and submissions.
GR1 (Government): It conducted closed hearings in which it considered the actual systems that were in place, the actual below-the-waterline arrangements, as they were put by it.
GR1 (Government): And it concluded that the regime was Article 8 compatible.
GR1 (Government): As I say, that included examination of the internal arrangements of the services, which for good national security reason, could not be made public, which they described as the below-the-waterline arrangements.
GR1 (Government): But those arrangements are plainly of at least some significance and certainly of relevance to the Article 8 issues, because they provide that final layer of control against abusive or arbitrary conduct or decision-making by the services when exercising these powers.
GR1 (Government): The other more specific limitations that the applicants seek to impose are, we submit, both unnecessary and in some respects, back to the balances I mentioned at the outset, positively and deeply damaging.
GR1 (Government): First, they seek to draw a parallel between the present situation and retention cases such as Essen, MAPA and MK in France.
GR1 (Government): Those cases are not remotely analogous.
GR1 (Government): In contrast to MAPA and MK, neither content nor CD can be accessed at all unless it's justified as necessary and proportionate for a national security-related or serious crime purpose.
GR1 (Government): The spectre that the applicants seek to conjure up of information gathering about the general population is simply false.
GR1 (Government): Moreover, in those cases, what was claimed was a power to retain fingerprint and biometric information, the subject of those cases, indefinitely, on the premise that at some point in the future it might be useful for a broad range of purposes.
GR1 (Government): Here, by contrast, no content is retained at all unless it is of intelligence value, and even then it's discarded after a few months unless incorporated into actual intelligence reporting.
GR1 (Government): Secondly, it's incorrect to suggest, as the applicants do, that all RCD is kept, still less that it's kept indefinitely.
GR1 (Government): Much, as I've described, is instantaneously discarded, and the remainder is kept for a limited period for potential searches for good reason.
GR1 (Government): They say next that there must be, as they put it, objective evidence of reasonable suspicion in relation to persons about whom data is sought and then examined, and they say there must be subsequent notification of those affected by bulk surveillance.
GR1 (Government): The problem with both of these requirements was rightly identified by the first section at Power 317.
GR1 (Government): They are fundamentally incompatible with the operation of a regime which does not depend on the existence of clearly defined surveillance targets.
GR1 (Government): The Section 8-4 regime is, by its nature, an untargeted regime.
GR1 (Government): It exists to discover unknown national security and serious crime threats, so reasonable suspicion simply could not be part of it.
GR1 (Government): Such a requirement would cripple its utility and prevent the discovery of the major national security threats of the kind I indicated at the outset.
GR1 (Government): As the IPT itself remarked, it is very difficult to know how a requirement to give notification can be interpreted in respect of the use of bulk data and how it could be practically implemented.
GR1 (Government): Just as importantly, notification is a requirement which, as cases such as Kennedy in the United Kingdom make clear, is linked to the effectiveness of remedies.
GR1 (Government): But here, as the first section rightly accepted, an effective remedy is already in place and doesn't depend upon notification.
GR1 (Government): Any person who suspects that they've been subject to unlawful surveillance can make a claim to the IPT without needing to show that the interception in fact occurred.
GR1 (Government): Next, the applicants say that there should be prior judicial authorisation, both of warrants and of selectors, and possibly even of search terms.
GR1 (Government): As to prior judicial authorisation of warrants, the Secretary of State was required personally to consider warrant applications on the basis of the detailed provisions in the Code, and the warrants were then themselves subject to independent oversight by the Commissioner, who viewed a substantial proportion of them and had full access to all relevant documents in assessing them.
GR1 (Government): The IPT then added a further layer of extensive judicial oversight.
GR1 (Government): And so the first section was right, we submit, to conclude that this section, this system, offered sufficient guarantees against abuse.
GR1 (Government): As to selectors, any requirement for prior judicial authorisation, would we submit, be wholly impractical.
GR1 (Government): GCHQ systems are necessarily tasked with many thousands of selectors, which may need to change rapidly in order to keep pace with fast-moving investigations and threat discoveries.
GR1 (Government): A requirement for prior judicial authorisation for each such selector would be impossible without fundamentally altering their ability to discover and repel threats.
GR1 (Government): Nor is it necessary, we submit, for convention compliance.
GR1 (Government): What is important is that the justification for each selector is recorded and is then capable of being subjected to independent oversight.
GR1 (Government): And that is exactly what happens.
GR1 (Government): I turn then to Article 10.
GR1 (Government): As to that, the Court's case law establishes that where an authority actively seeks an order for the disclosure of journalistic sources or confidential journalistic material of comparable sensitivity, it will require independent authorisation, saving cases of urgency.
GR1 (Government): The Sonoma case, upon which the applicants principally rely, was precisely that sort of case.
GR1 (Government): It concerned an order for disclosure of a source.
GR1 (Government): However, Sonoma does not, we submit, establish that such independent authorisation is required where the selection for examination of material from bulk merely might or could result in an interference with Article 10 rights.
GR1 (Government): Such a requirement would make no sense.
GR1 (Government): At the warrant-issuing stage, all the independent person could be told is that the execution of the warrant might result in the interception of some journalistic material.
GR1 (Government): And at the stage of selection for examination, it will very often only be known after selection has taken place whether journalistic material is involved.
GR1 (Government): What is required here, rather, we submit, as the first section rightly found, are special protections under the Code for protecting the confidentiality of such material.
GR1 (Government): It is necessary for those who intend to select such material to give particular consideration to the importance of the rights at stake.
GR1 (Government): And if such material is selected for examination, whether intentionally or unintentionally, it's necessary to identify it and ensure that it's subject to stringent safeguards.
GR1 (Government): The Code provides stringent safeguards for confidential journalistic material, which has been identified as such, as paragraph 494 of the first section's judgment properly recognised.
GR1 (Government): But the Government has accepted that the Code should have provided appropriate special protections where the intelligence services which to search bulk intercept for such material in the first place.
GR1 (Government): I turn finally and briefly to the intelligence-sharing regime.
GR1 (Government): The Court has asked whether the communications of a specified individual must be expressly identified on the face of a section 8.4 warrant
GR1 (Government): when a request is made to a foreign government for the communications of that individual.
GR1 (Government): If the individual's communications are in principle covered by a section 8.4 warrant,
GR1 (Government): the same position applies here as applies within the section 8.4 regime more generally.
GR1 (Government): If selectors referable to an individual known to be in the British Isles are used to obtain the individual's communications, they must be named in the Secretary of State's certificate under 8.4,
GR1 (Government): and the Secretary of State must personally consider the necessity and proportionality of adding them to the certificate.
GR1 (Government): If the individual is not known to be in the British Isles, then they won't be named on the certificate.
GR1 (Government): In practice, the foreign government will be asked to select material for examination on the same basis as GCHQ would itself select the material from communications it had intercepted in bulk, and to provide that material to GCHQ where it's lawful for them to do so.
GR1 (Government): The foreign government will be provided with appropriate strong selectors, for example, an email address, enabling it to do so.
GR1 (Government): Importantly, before any such strong selector is provided, GCHQ must make an assessment of the necessity and proportionality of obtaining the communications concern for the purposes in the Secretary of State's certificate.
GR1 (Government): That is what section or paragraph 12.2 of the Code provides.
GR1 (Government): And if the individual whose communications are intended to be selected is in the British Isles, the Secretary of State will have considered the necessity and proportionality of obtaining their communications, again on an individualised basis.
GR1 (Government): So, in effect, GCHQ will follow the same process as for any individual whose communications it wished to select for examination under a section 8.4 warrant,
GR1 (Government): save that the foreign government, rather than GCHQ, will be asked to effect the selection and provide the information.
GR1 (Government): GCHQ only provides strong selectors to foreign governments on the basis of a previously issued section 8.4 warrant.
GR1 (Government): No request has ever been made for the communications of an individual where no relevant RIPPER interception warrant has been in place.
GR1 (Government): So the Court's question about what happens where no warrant has been issued does not, in fact, arise.
GR1 (Government): However, as the Code makes clear, if such a request were ever to be made, the Secretary of State would need personally to consider the necessity and proportionality of obtaining that individual's communications.
GR1 (Government): As to compatibility, therefore, of that regime, my submission is that the first section were right to find that the intelligence-sharing regime was compatible under Article 8 for the reasons that they gave.
GR1 (Government): Under the Code, the very same safeguards that apply to intercept material within the RIPPER regime must be applied to the same categories of content or data when they're obtained by the foreign intelligence services or by the intelligence services from foreign states.
GR1 (Government): Those safeguards, including oversight by the Commissioner, the ISC, the Tribunal, meet the standards of the Convention for the reasons I've already outlined.
GR1 (Government): The Government does not accept that the FABER criteria apply in this very different intelligence-sharing context, but if they do, they are satisfied, we submit.
GR1 (Government): The question of the intelligence-sharing regime's compatibility with Article 10 does not arise at all, we submit, for the reasons set out in the Government's submissions.
GR1 (Government): The applicants in the Big Brother Watch case have not brought a case under Article 10.
GR1 (Government): The applicants in the Bureau of Investigative Journalism case have not complained about the intelligence-sharing regime in the first place, and the applicants in the 10 Human Rights case have not exhausted domestic remedies in respect of any complaint concerning protections of journals.
GR1 (Government): So for all of those reasons, Madam President, members of the Court, we submit that the right answer to this case is that there has been no violation of either Article 8 or Article 10.
Angelika Nußberger (JudgeP): I now invite the judges of the Grand Chamber, wishing to do so, to put their questions to the parties.
Angelika Nußberger (JudgeP): Vice President Spano.
Robert Spano (Judge): Thank you very much, Madam President.
Robert Spano (Judge): I have two questions.
Robert Spano (Judge): One is more of a technical clarification.
Robert Spano (Judge): The second relates to the application of legal principles.
Robert Spano (Judge): Mr. Eadie makes references on a number of occasions
Robert Spano (Judge): to the fact that the analyst has to present or formulate a written record for the justification of the choice or use of selectors.
Robert Spano (Judge): That is also referenced in the government's pleadings at paragraph 35, where it is also elaborated.
Robert Spano (Judge): I understand the government's argument to be that that is an important part.
Robert Spano (Judge): And I used the words of Mr. Eadie just now.
Robert Spano (Judge): It's an important part of the efficacy of the oversight process by the ICC.
Robert Spano (Judge): Just a clarification, in the applicant's observations, paragraph 59, subparagraph B, the applicant claims access to content is achieved by the analyst typing a few words of justification into a dropbox on their computer.
Robert Spano (Judge): There is a reference here made to the testimony of a Mr. Eric
Robert Spano (Judge): King.
Robert Spano (Judge): You will see this in the core bundle, item number five.
Robert Spano (Judge): Can I ask if the government is able to comment on this allegation made by the applicant, because it goes to the efficacy of the issue in question?
Robert Spano (Judge): My second question relates to, and it is prompted by an argument made by Mr. Jaffey this morning
Robert Spano (Judge): in relation to EU law.
Robert Spano (Judge): Mr. Jaffey mentioned how the UK government
Robert Spano (Judge): is reacting to the Digital Rights Ireland, TELETU judgments of the ECJ.
Robert Spano (Judge): May I ask the government to comment, and I would also ask the applicant to comment, to what extent does or do these judgments of the ECJ, the line of case law pronounced by the ECJ, of course, in the environment of the retention directive vis-a-vis private communications providers and its requirement?
Robert Spano (Judge): And I refer here in particular to paragraphs 119 and 120 of the TELETU judgment, where prior control is considered to be a requirement, either a judicial prior control or independent administrative control.
Robert Spano (Judge): And there is a reference made there to our judgment in SABO and VC.
Robert Spano (Judge): And I would like both parties to clarify this.
Robert Spano (Judge): To what extent is this relevant for us?
Robert Spano (Judge): And if you do not think it's relevant, and I particularly to the government, could you explain why you consider that this line of case law is not something that the court should look at when confronted with the applicant's argument, their core argument, that one of the updating requirements is prior authorization?
Angelika Nußberger (JudgeP): Thank you, president De Gaetano.
Vincent A. De Gaetano (Judge): Thank you, Madam President.
Vincent A. De Gaetano (Judge): I have three short questions.
Vincent A. De Gaetano (Judge): The first two directed to the respondent government, but of course the applicants may wish to wade in.
Vincent A. De Gaetano (Judge): And the third question directed to both.
Vincent A. De Gaetano (Judge): And I apologize up front if the answer to these questions is tugged away somewhere in the voluminous documentation in this case, which I may have missed.
Vincent A. De Gaetano (Judge): Now, the first question is both Mr. Jaffey and Ms. Mountfield
Vincent A. De Gaetano (Judge): have referred to the difference between external and internal communications, and how what may apparently be an internal communication may in fact be an external communication.
Vincent A. De Gaetano (Judge): Now, is it, and this is a very specific question, is it the position of the respondent government that such external communications deserve somehow lesser protection under the convention, under the European Convention, than internal communications?
Vincent A. De Gaetano (Judge): That is my question.
Vincent A. De Gaetano (Judge): The second question is, well, Sir James Eadie has rightly referred to the security threats and the need to secure the lives and safety of the public.
Vincent A. De Gaetano (Judge): Now, my question is this.
Vincent A. De Gaetano (Judge): What is the purpose of intelligence collection for the so-called economic well-being of the nation?
Vincent A. De Gaetano (Judge): How is this quote unquote economic well-being of the nation defined or interpreted in practice, also in light of what the Venice Commission refers to as economic espionage?
Vincent A. De Gaetano (Judge): And the third question directed to both is, what really is the rationale of the introduction by virtue of the Investigatory Powers Act of 2016 of the notification of the person or persons being surveyed in cases of serious error?
Vincent A. De Gaetano (Judge): Is there a link between such a notification or the requirement of such a notification and the requirement of efectiveness of this 2016 act?
Vincent A. De Gaetano (Judge): Thank you, Madame President.
Angelika Nußberger (JudgeP): Thank you, Judge Grozev.
Yonko Grozev (Judge): Thank you, Madam President.
Yonko Grozev (Judge): I have one question for the applicants and two more technical questions for the government.
Yonko Grozev (Judge): The applicant has been arguing in both their submissions in writing and today that we should use the reasonable suspicion standard as a basis for allowing bulk interception.
Yonko Grozev (Judge): Reasonable suspicion, however, is intrinsically linked to the concept of a crime.
Yonko Grozev (Judge): Bulk interception, on the other hand, is also a tool for intelligence gathering that implies more general national security risks.
Yonko Grozev (Judge): How does the applicant suggest that we use reasonable suspicion in this foreign intelligence context?
Yonko Grozev (Judge): And how would that differ from the standard applied by the government at present, which is necessary and proportionate for avoiding national security risks?
Yonko Grozev (Judge): My questions to the government.
Yonko Grozev (Judge): We understand from the government submissions that the Secretary of State warrant does indicate the content that has to be intercepted.
Yonko Grozev (Judge): The applicant has, in their pleadings, claimed that the warrant of the Secretary of State, however, does not specify the bearer to be intercepted.
Yonko Grozev (Judge): Would you agree with that description?
Yonko Grozev (Judge): Is it correct?
Yonko Grozev (Judge): And if yes, what is the process of selecting the individual bearers for interception?
Yonko Grozev (Judge): And my second question to the government is related to the intelligence sharing.
Yonko Grozev (Judge): Do I understand correct that as the warrant of the Secretary of State does not specify individuals, whenever a request is made that uses strong selectors indicating an individual, that would be included in a certificate that is being issued?
Angelika Nußberger (JudgeP): Thank you. Judge Pavli.
Darian Pavli (Judge): I have two questions for the government, but the applicant may feel free to comment as well.
Darian Pavli (Judge): The first relates to the data retention periods.
Darian Pavli (Judge): Now, we've heard today, and I think from the submissions as well, there's conflicting claims.
Darian Pavli (Judge): The applicant, the counsel for the applicants said today that the agencies, they keep old data for up to two years.
Darian Pavli (Judge): I think Mr. Eadie referred to several months, and the submissions talk about exceptions.
Darian Pavli (Judge): So they talk about several weeks in some cases, several months, up to two years, but in all instances, there seem to be exceptions that would allow for even longer retention periods.
Darian Pavli (Judge): So this is the first part of the question, and the second part is not so much as a matter of law, what the law allows, but as a matter of practice and the scope of this retention.
Darian Pavli (Judge): Do UK agencies retain for considerable periods, by which I mean more than a few days or a few weeks, communications pertaining at any given time to large numbers of individuals, by which I mean in the scale of millions?
Darian Pavli (Judge): So communications held of large numbers of individuals for considerable amounts of time, what is the scale, and by communications, I mean both content and communications data or metadata, and if you could factor into that response the intelligence received through sharing by third parties.
Darian Pavli (Judge): And I'd appreciate if you're not in a position today to provide a response if you'd be willing to provide that in writing to the court.
Darian Pavli (Judge): My second question is, as a matter of convention law, how in the view of the government is bulk surveillance involving the use of strong selectors, such as an individual's known or suspected email address or telephone number, how is that different as a matter of convention law from targeted surveillance of the same individual, let's say old-fashioned telephone tapping for purposes of reasonable suspicion, if the court found that to be applicable?
Darian Pavli (Judge): I note here that your system applies both to foreign intelligence, but also to purposes of serious crime and also possibly prior judicial or some other prior form of authorization.
Angelika Nußberger (JudgeP): Thank you. Judge Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): I have some questions to the parties.
Paulo Pinto de Albuquerque (Judge): Both parties can intervene.