TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): And the loophole was identified by the first section at paragraph 348.
AP1 (Applicant): The certificate only constrains the examination of content, not the examination of communications data.
AP1 (Applicant): So the reality is that the UK safeguards have stood still, but the world hasn't.
AP1 (Applicant): Now, in response to that, a partial concession has now been made.
AP1 (Applicant): The UK say that they will introduce a new scheme of non-statutory thematic approvals.
AP1 (Applicant): Now, they say that's being done entirely voluntarily.
AP1 (Applicant): In reality, we suggest it's being done through legal obligation as a result of the first section's judgment.
AP1 (Applicant): But the Grand Chamber is invited to confirm those findings.
AP1 (Applicant): We also invite the court to take the further step of recognizing that the external communications safeguard no longer acts as a meaningful constraint for the reasons I've just developed.
AP1 (Applicant): The first section also found that the oversight of bearers and selectors was inadequate, and it was correct to do so.
AP1 (Applicant): The government now accepts at paragraph 70 of its observations that oversight by the commissioners only consists of 15 person days per year.
AP1 (Applicant): They won't say how many selectors there are.
AP1 (Applicant): And looking recently at GCHQ's website, they employ over 6,000 people.
AP1 (Applicant): There is no evidence before the court that the commissioner actually looked at particular selectors used.
AP1 (Applicant): That's not sufficient oversight.
AP1 (Applicant): Turning then to the question of updating, the applicants proposed three supplemental safeguards.
AP1 (Applicant): First of all, prior judicial authorization of warrants, bearers, and selectors.
AP1 (Applicant): Secondly, a test of reasonable grounds of suspicion.
AP1 (Applicant): And thirdly, notice after the event where possible.
AP1 (Applicant): Now, why is it that the applicants say that prior judicial authorization is important?
AP1 (Applicant): Well, the answer is that only approval by a judge offers a guarantee of independent control before the interference occurs.
AP1 (Applicant): Now, such a scheme is perfectly possible, albeit it's still flawed.
AP1 (Applicant): The United Kingdom has introduced a scheme of prior judicial approval under the Investigatory Powers Act 2016.
AP1 (Applicant): What the government then says is, well, it's impossible to do any more than approve a small number of general warrants.
AP1 (Applicant): And they resist a system of judicial approval of bearers and selectors.
AP1 (Applicant): But such a system is not impossible.
AP1 (Applicant): In Weber, the independent commission, the G10 commission, approves a list of selectors.
AP1 (Applicant): And such approval systems operating at scale are perfectly possible.
AP1 (Applicant): Following the judgment of the Court of Justice of the European Union in Telly 2, Svea and Watson, the United Kingdom is introducing a system of prior approval for access to communications data in relation to the police.
AP1 (Applicant): There were approximately 3 quarters of a million applications that will need to be considered each year.
AP1 (Applicant): The UK uses that data on a large scale.
AP1 (Applicant): And that scheme will be operational by the end of this year.
AP1 (Applicant): Large-scale interference with privacy may require a large-scale system of safeguards.
AP1 (Applicant): And they are possible.
AP1 (Applicant): Turning then to reasonable grounds for suspicion, one use of bulk data which is made is searching with strong selectors, which is roughly equivalent to an individual 8-1 warrant, a particular name or email address.
AP1 (Applicant): When the intelligence services are able to identify a specific intelligence target, they ought to apply the test which was identified by the Grand Chamber in Zakharov, that of reasonable grounds for suspicion, paragraph 260 of the Zakharov judgment.
AP1 (Applicant): Otherwise, what happens is that bulk interception will become a loophole to avoid the protections of an individual warrant.
AP1 (Applicant): Now, the government's response to that is, well, we also use bulk interception to identify unknown targets.
AP1 (Applicant): Well, that's just another way of saying that we should all have all of our communications analyzed, even if we are not thought to have done anything wrong.
AP1 (Applicant): And that carries grave risks, which is why a requirement of objective evidence of reasonable suspicion is now needed.
AP1 (Applicant): We've given examples in our observations of the intrusiveness of these arrangements.
AP1 (Applicant): One of them is one of the programs disclosed by Edward Snowden, Optic Nerves, of collecting an image from the webcam of every user of Yahoo Chat every five minutes.
AP1 (Applicant): A substantial proportion of those images were of an intimate and sexual nature.
AP1 (Applicant): Finally, we propose notice be given where possible.
AP1 (Applicant): Now, of course, notification may not be possible in every case.
AP1 (Applicant): But under RIPA, it is prohibited in every case.
AP1 (Applicant): Now, in the absence of such notification, the right of access to the tribunal is largely futile.
AP1 (Applicant): If you don't know that you haven't been subject to surveillance, a person has no reason to apply to the Investigatory Powers Tribunal.
AP1 (Applicant): And since the first section's judgment, the IPT has, in a judgment called Human Rights Watch, held that suspicion is not enough of itself to bring an application.
AP1 (Applicant): And that's different from the position as this court understood it, or the first section understood it and was understood in Kennedy.
AP1 (Applicant): The final point which I'm going to deal with is journalism and Article 10.
AP1 (Applicant): Journalists do require a strong and special system of protection for their sources and their confidential information.
AP1 (Applicant): This court's repeatedly held there's a particularly strong public interest in maintaining the confidentiality of sources.
AP1 (Applicant): Goodwin in the UK, for example.
AP1 (Applicant): Usually, all that you need is the communications data to identify a source.
AP1 (Applicant): And yet, under the RIPA bulk scheme, communications data gets far less protection than content.
AP1 (Applicant): There are four requirements.
AP1 (Applicant): Judicial authorization prior to the search being carried out, or at least the use of data, an overriding requirement of public interest, and a scheme with clear rules.
AP1 (Applicant): RIPA fails each of those requirements identified by the Grand Chamber in Sonoma.
AP1 (Applicant): If bulk intercept can unmask a journalist's source, there is no system here of prior judicial authorization.
AP1 (Applicant): It may be done by an official in secret.
AP1 (Applicant): Nor is there an express requirement for an overriding public interest.
AP1 (Applicant): Now, that judicial control is necessary.
AP1 (Applicant): And it has to be ex ante because the identification of a confidential source is final.
AP1 (Applicant): Once the source has been identified, the damage has been done.
AP1 (Applicant): And the regime will have a chilling effect on the work of the media.
AP1 (Applicant): Now, the First Section were correct that there was a breach of Article 10.
AP1 (Applicant): And the United Kingdom concedes that the First Section was right.
AP1 (Applicant): But Sonoma goes considerably further than the First Section.
AP1 (Applicant): And the Grand Chamber is invited to make that clear, that a system of prior authorization is now required.
AP1 (Applicant): Finally, the role of NGOs is not recognized, either in the UK legislation or the codes of practice.
AP1 (Applicant): NGOs may act as public watchdogs when they rely on confidential sources.
AP1 (Applicant): And it's necessary that when they are acting in a position similar to journalists, they receive the same degree of protection.
AP1 (Applicant): The remaining issue before the court is intelligence sharing, which will be dealt with by Ms. Mountfield.
Angelika Nußberger (JudgeP): Thank you.
Angelika Nußberger (JudgeP): May I call Ms. Mountfield
AP2 (Applicant): Madam President, members of the court, the partially declassified Five Eyes Agreement between the United Kingdom, the United States, Canada, Australia, and New Zealand is based on the sharing of bulk intercept.
AP2 (Applicant): Edward Snowden disclosed the extensive access, use, and storage by the UK intelligence service, UKIS, of communications and communications data which had been intercepted by the United States National Security Agency and others.
AP2 (Applicant): Now, Mr. Jaffe has eloquently set out the intrusion
AP2 (Applicant): into private life and the chilling effect on journalistic freedom of bulk interception by UKIS.
AP2 (Applicant): But UKIS' use of third country intercept data is just as damaging to privacy and freedom of expression as the retention and use of such data when it is gathered by the UK intelligence services themselves and the same privacy protections and standards therefore ought to apply to it.
AP2 (Applicant): Let me give an example.
AP2 (Applicant): A and B both live in London, and A sends B an email, or a text, or a Facebook message, or an Instagram image, or a direct message on Twitter.
AP2 (Applicant): And that communication is transmitted via a server in the United States of America.
AP2 (Applicant): If GCHQ intercept that email as it leaves the UK on a cable bound for America, then the government accepts that sections 8 and 16 of REPA apply to the interception and to the use of the communications data.
AP2 (Applicant): And indeed, the first section's judgment requires additional safeguards to be introduced too.
AP2 (Applicant): But if the National Security Agency intercepts the same email at the other end of the same cable and then give GCHQ a copy of it, or the communications data relating to it, the same REPA safeguards do not apply.
AP2 (Applicant): And the first section said that in those circumstances, there was no breach of Article 8.
AP2 (Applicant): It's entirely arbitrary for there to be different legal protections for the same data based only on the technical happenstance of who carried out the initial interception.
AP2 (Applicant): GCHQ's processing, storage, and use of the intercept is the same whoever conducted the interception itself.
AP2 (Applicant): And arbitrary and inconsistent rules for access to private data on such a large scale is the antithesis of respect for private life.
AP2 (Applicant): As the UK government itself acknowledges in paragraph 3 of its response to the court's questions, in order to comply with Article 8 standards, systems must provide appropriate protection against abuse and arbitrariness by the state.
AP2 (Applicant): And this scheme doesn't do that.
AP2 (Applicant): The absence of an equally protective statutory scheme of safeguards for use of third country intercept data, as for home country intercept data, means that UK law is insufficient to provide protection against arbitrariness and abuse.
AP2 (Applicant): Now, this court has held correctly that the decisive factor in determining the specificity of legal safeguards required to prevent arbitrary or disproportionate interference with privacy is the extent of the interference with an individual's private life, which requires protection.
AP2 (Applicant): It's not the technological means through which the interference happens to occur.
AP2 (Applicant): That was established in the case of RE in the United Kingdom at paragraphs 129 to 130.
AP2 (Applicant): And we say that by parity of reasoning, the extent of legal protection around secret state surveillance shouldn't depend on whether the state itself operates the technology, or whether a foreign partner does the intercepting and then shares the product.
AP2 (Applicant): Otherwise, a state could outsource surveillance that isn't compatible with the convention, but still reap the benefits of it.
AP2 (Applicant): Now, that's particularly true of the United States, because as the National Security Agency itself says, the United States is a principal hub in the world's telecommunications system.
AP2 (Applicant): So wherever it starts, wherever it finishes, a very large amount of private material relating to UK residents and European residents, and indeed world residents, will pass through the United States in the course of its transmission.
AP2 (Applicant): And since the invasion of privacy is the same, whether this is direct, UKIS intercept, or third country intercept, there can be no principal justification for a lesser degree of legal protection in relation to it.
AP2 (Applicant): Now, the third section correctly made the following three findings relevant to this aspect of the submissions.
AP2 (Applicant): The first was that the existence of secret intelligence sharing arrangements was itself an interference with the applicant's Article 8 rights.
AP2 (Applicant): The second was that all the applicants were at risk of having their communications obtained by the UK intelligence services.
AP2 (Applicant): And indeed, in some cases, there was proof that it had occurred.
AP2 (Applicant): And thirdly, the point I made a moment ago, that since third country intercept material is still the product of intercept, the same requirements as to the bulk interception regime must also apply to the intelligence sharing regime, because otherwise, states could use intelligence sharing to circumvent stronger domestic surveillance procedures.
AP2 (Applicant): Now, those findings were all obviously right, and indeed, the UK government accepts them.
AP2 (Applicant): The first section found the standards and safeguards required for interception and intelligence sharing ought to be the same.
AP2 (Applicant): And it follows that if, as the first section found, the safeguards are inadequate in relation to direct surveillance by UK services, then, as we submit, they ought also to have found they are inadequate for the indirect surveillance by them.
AP2 (Applicant): That was the conclusion that judges Koskalo and Turkovich made at paragraph 31 of their dissenting judgment, and we respectfully submit that they were right.
AP2 (Applicant): And we also note that the UN special rapporteur also agrees that the same safeguards are needed for internal and third party intercept at paragraph 22 of his submissions to this chamber.
AP2 (Applicant): And the first section's disapproval of the REAPER section 84 regime, while approving the UK's intelligence sharing regime, is therefore illogical.
AP2 (Applicant): The first section's approach enables the very circumvention of domestic safeguards, which the first section acknowledged as a key risk.
AP2 (Applicant): And we submit that the first section also failed to consider the application of Article 8 safeguards to the sharing of unsolicited, rather than requested, third country intercept.
AP2 (Applicant): In the Council of Europe convention system, which is concerned with the practical and effective safeguarding of human rights, whether or not private material used by UKCCIS has been intercepted by a third country, solicited or unsolicited, makes no difference to the extent of interference under Article 8, and indeed Article 10, which arise from its use.
AP2 (Applicant): And indeed, given the very close links between the UK Intelligence Service and the NSA, and other intelligence services all around the world, this may be an artificial distinction because of the closeness of the intelligence sharing relationships.
AP2 (Applicant): Receipt of unsolicited material is expressly envisaged by the intelligence sharing regime.
AP2 (Applicant): And we note that in the chamber judgment at paragraph 417, the chamber recorded the government accepting that this does happen, albeit rarely.
AP2 (Applicant): And in that context, there are no safeguards, even as a matter of policy.
AP2 (Applicant): Paragraph 12.6 of the code of practice,
AP2 (Applicant): quoted in full at paragraph 109 of the first instance judgment, sets out those provisions.
AP2 (Applicant): Now, the respondent accepts that there's no express statutory framework analogous to RIPA, governing the authority upon which and the circumstances in which UKCCIS can use third country intercept data, and relies instead on a series of bare statutory powers, which it claims are applied in an analogous manner as a matter of policy.
AP2 (Applicant): Even if those policy assurances were sufficient, compliance with the current section 8.4 standards
AP2 (Applicant): would still breach article 8 for the reasons that Mr. Jaffe has explained.
AP2 (Applicant): And the very broad statutory framework for receipt of information by the UK security services is insufficiently tailored to provide sufficient foreseeability as to the circumstances in which third country interception data is used by them and other state agencies, or adequate constraints upon discretion to receive, analyze, and use third country intercept.
AP2 (Applicant): Firstly, decisions as to whether it's necessary to obtain, analyze, or store such data, which are received for very broad permitted purposes, are taken by individual, potentially fairly junior members of the security service with no prior independent or judicial approval.
AP2 (Applicant): The legislation itself provides no clear guidance to that official, or indeed the public, as to the principles upon which such a decision will be taken.
AP2 (Applicant): And when these applications were brought, the situation was entirely opaque.
AP2 (Applicant): The code of practice concerning interception of communications didn't address the issue of intelligence sharing at all.
AP2 (Applicant): And it's true that by January 2016, over three years after the proceedings were lodged, the code of practice, chapter 12 of the code of practice, was added.
AP2 (Applicant): But that guidance document, which is, of course, flexible policy, which may be departed from for good reason, does not comply with Article 8's quality of law requirements, because it does not provide sufficient clarity as to the process by which, or the principles upon which, third party intercept data will be used.
AP2 (Applicant): Moreover, as Mr. Jaffe said, the uses
AP2 (Applicant): of technology and known interception capacities have changed radically since this court last considered interception by the United Kingdom.
AP2 (Applicant): But the importance to humans of a sphere of private interaction and private correspondence, which the convention is intended to respect and protect, and I emphasize to preserve, have not changed.
AP2 (Applicant): And in the context of the reality of substantially new technological interception capabilities, which were revealed by Edward Snowden, and the increased capacity, complexity, and intrusiveness of algorithmic searching, we respectfully invite the court to recall the need which it identified in the Schabo case, at paragraph 68 to 70, to match technological developments with the simultaneous development of legal safeguards securing respect for citizens' convention rights.
AP2 (Applicant): Thank you, Your Honor.
AP2 (Applicant): Now, turning to the applicable standards, in order to ensure effective oversight and genuine guarantees against abuse of privacy rights in this brave new world, the court is invited to uphold the findings of the first section that the Weber standards apply to the access and use of third country intercept data.
AP2 (Applicant): And it should also affirm the necessity of the supplementary safeguards outlined by the Murphy in respect of intelligence sharing, too.
AP2 (Applicant): I make following five brief points.
AP2 (Applicant): First, it is not the case, as the first section appeared to suggest, that the first Weber criterion could only apply if the UK itself had control over the act of interception.
AP2 (Applicant): Indeed, the respondent appears to recognize this in its observations for this chamber at paragraph 189.1.
AP2 (Applicant): And I also note that in the first section judgment, the Venice Commission report on the democratic oversight of signals intelligence itself suggested that there should be a requirement of equivalent safeguards before search, where the interception had been conducted outside the Council of Europe.
AP2 (Applicant): That's at paragraph 216.
AP2 (Applicant): Secondly, the respondent is wrong to claim that this approach may be overbroad.
AP2 (Applicant): The breadth of the potential safeguards which are required only reflect the breadth of what foreign intelligence services may be able to scoop up in states in which Council of Europe standards do not directly apply.
AP2 (Applicant): Thirdly, and contrary to the respondent's argument again, we are not singling out or arbitrarily singling out intercept data from other kinds of information that might be shared by foreign intelligence agencies.
AP2 (Applicant): Interference with private life arising from bulk data interception is qualitatively and quantitatively different from other forms of information gathering.
AP2 (Applicant): But the impact of such bulk data interception is identical no matter who performs the initial act of interception.
AP2 (Applicant): Fourthly, the respondent undermines its own argument that it would be neither, I quote, feasible nor safe to comply with the Weber criteria in respect of third party intercept data by simultaneously claiming, in paragraphs 188 to 199 of its observations, that the intelligence sharing regime does, in fact, comply with them.
AP2 (Applicant): Fifthly, and in any event, the Weber safeguards and the additional protections which are proposed by Mr. Jaffe
AP2 (Applicant): are not, in fact, satisfied by the legal regime which governs the security services access and use of third country interception data.
AP2 (Applicant): And we address this in paragraphs 105 to 140 and paragraph 181 of our consolidated submissions to the Grand Chamber.
AP2 (Applicant): The Security Service Act and the Intelligence Service Act are simply too broad and unspecific to satisfy the quality of law requirements.
AP2 (Applicant): Without a clear and accessible legal framework, there is an obvious danger that domestic protections for the privacy of communications can be circumvented by use of third country interception data from states where Council of Europe standards do not apply, especially where there is no provision in statute or in policy for any ex post facto review of the lawfulness of the means by which the material was acquired.
AP2 (Applicant): And this interferes with Article 10 rights as well as Article 8 rights, which is a particular concern for journalists and human rights organizations such as the applicants.
AP2 (Applicant): Because the intelligence sharing regime does not contain any of the Sonoma safeguards.
AP2 (Applicant): This absence of safeguards may also have a chilling effect on important political communication, which is not only the heart of a democratic society, but vital to the protection and preservation of such a society.
AP2 (Applicant): And it is no answer to this concern simply to assert that access to foreign security services intercept to circumvent the existing legal controls in the United Kingdom would amount to a public law wrong because it would be using that data for a purpose not permitted by domestic law.
AP2 (Applicant): And the reason that is no answer is because there is no clear public or accessible legal framework to make this assurance good as Article 8 requires.
AP2 (Applicant): As to victim status, exhaustion of remedies, and just satisfaction, the applicants rely on their written observations.
AP2 (Applicant): We submit that the Zakharov criteria for victim status are clearly satisfied since all the applicants are either actual victims of interception or genuinely at risk of it.
AP2 (Applicant): And on the basis of Kennedy and the laws it stood when the application for Big Brother Watch and others was submitted, they were entitled to treat the IPT as an inadequate remedy.
Angelika Nußberger (JudgeP): I call Sir James Eadie for the government.