TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): In any event, the issue of a section 8-4 warrant hinges on the Secretary of State's assessment that the warrant is necessary for the protection of national security.
AP1 (Applicant): As explained at paragraph 113 of our submissions, that concept is so broad and vague that it fails to satisfy the Article 8 requirements.
AP1 (Applicant): Secondly, and crucially, the regime lacks the safeguards necessary to protect against arbitrary state interference.
AP1 (Applicant): The minimum safeguards regarded as constituting the necessary minimum by this court so far are those enumerated in Waiver.
AP1 (Applicant): And it was striking to hear Mr. Eadie this morning
AP1 (Applicant): seek to invite the court to water those down.
AP1 (Applicant): The UK argues that the Waiver safeguards apply only to content.
AP1 (Applicant): They're driven to that position because of the lack of any effective safeguards under the domestic regime to cover communications data.
AP1 (Applicant): This argument is misconceived.
AP1 (Applicant): If adopted by this court, it would severely undermine the effective protection of Article 8 rights.
AP1 (Applicant): The relevant question is not whether data is categorized under domestic law as content or as communications data.
AP1 (Applicant): A proper question is how severely the interception, storage, and use of that data interferes with privacy rights.
AP1 (Applicant): The interference in relation to communications data is very severe.
AP1 (Applicant): This data enables the state to build up intrusive personal profiles of the lives of huge numbers of individuals.
AP1 (Applicant): And we've dealt with this at paragraphs 11 to 13 and 116 of our observations.
AP1 (Applicant): We invite this court, as courts in the European Union, the United States, and the United Kingdom have already done, explicitly to recognize the gravity of the interference with privacy rights that comes from the searching and use of communications data.
AP1 (Applicant): Collection and use of communications data interferes not only with privacy rights, but also the right to freedom of expression.
AP1 (Applicant): And this is in our observations at 148 to 154.
AP1 (Applicant): The state may use communications data to reconstruct the identities of persons with whom a journalist or a human rights NGO has had contact, the occasions and places where they've done so, the websites and the places they visited.
AP1 (Applicant): It is above all the state's access to this data which has the chilling effect on the ability of journalists and NGOs to contact sources and witnesses or whistleblowers and to investigate potential abuses of fundamental rights.
AP1 (Applicant): We therefore submit that the collection and use of communications data is a severe interference with privacy rights and with freedom of expression for which the application of the Weber minimum safeguards is essential to protect against the arbitrary abuse of state power.
AP1 (Applicant): The absence of proper safeguards applicable to communications data is a clear breach of Articles 8 and 10 of the Convention.
AP1 (Applicant): But in fact, the Weber safeguards are not met even in relation to content in this case.
AP1 (Applicant): And we have explained this point at paragraphs 120 to 127 of our consolidated observations.
AP1 (Applicant): And we also say that the Weber safeguards are not the end of this matter.
AP1 (Applicant): As this court noted in Zabo, those safeguards should now be updated in the light of technological change and the vastly increased capabilities of state agencies to store and interrogate private data.
AP1 (Applicant): We submit that there are three enhanced safeguards that should be applied to modern forms of surveillance because without them, there is no practical or effective protection for Article 8 or 10 rights.
AP1 (Applicant): First, we invite this court to make it clear that prior independent judicial authorization is required for the issue of a warrant permitting bulk interception and collection of the content of communications and associated communications data.
AP1 (Applicant): Secondly, that a warrant should be issued only where there's objective evidence of reasonable suspicion of a serious crime or conduct amounting to a specific threat to national security.
AP1 (Applicant): And third, that where possible, there should be provision for the notification of those whose data has been accessed after the event so they have a meaningful opportunity to challenge the lawfulness of the action taken against them.
AP1 (Applicant): The United Kingdom says these safeguards are not necessary.
AP1 (Applicant): It makes much of the existence of the IPT and the various commissioners as providing sufficient oversight.
AP1 (Applicant): Those institutions are not sufficient.
AP1 (Applicant): Given the breadth and the scope of the warrants in question, which do not require any evidence of reasonable suspicion, it is difficult to see what effective action the commissioners could take.
AP1 (Applicant): Any action they do take will, of course, be after the event.
AP1 (Applicant): There is also a serious question of practicality and resources.
AP1 (Applicant): The government accepts at paragraph 70 of its observations that oversight by the commissioners consists of a total of 15 person days per year.
AP1 (Applicant): This is obviously inadequate to enable the conduct of any thorough or detailed audit or oversight of the agencies.
AP1 (Applicant): The GCHQ's website says it employs over 6,000 people, MI5 around 4,000, MI6 at least 2,500.
AP1 (Applicant): It is impossible for the commissioners to provide meaningful control over their activities.
AP1 (Applicant): Only scrutiny of the necessity and proportionality of warrants in advance by a judge can satisfy that requirement.
AP1 (Applicant): I've made the point that people whose communications are intercepted and examined are never notified that this has occurred.
AP1 (Applicant): In the absence of such notification, the right of access to the Investigatory Powers Tribunal is largely futile.
AP1 (Applicant): With no way of knowing that they have been the subject of state surveillance, the vast majority of people have no reason to apply to the IPT to discover whether the surveillance to which they've subjected was or was not lawful.
AP1 (Applicant): The defendant says that notification after the event might jeopardize intelligence operations.
AP1 (Applicant): Even if that were so in some cases, that cannot be an adequate reason for making no provision for such notification in any case.
AP1 (Applicant): Other jurisdictions have been able to make provision for notification after the event, apparently without jeopardizing their intelligence operations.
AP1 (Applicant): They include Germany, Austria, the Czech Republic, Denmark, Belgium, and Switzerland.
AP1 (Applicant): This court was right in its judgment in the case of Association for European Integration in 2013 to note that the lack of provision for such notification under Bulgarian law was a missing important safeguard against improper use.
AP1 (Applicant): That was paragraph 91 of that judgment.
AP1 (Applicant): So for all these reasons, we say that the United Kingdom regime under 8.4 fails the test that it
AP1 (Applicant): must be in accordance with law, just as the old regime failed the test in 2008.
AP1 (Applicant): In any event, we say that the practice of the UK is disproportionate.
AP1 (Applicant): It appears that the UK is systematically collecting both communications data and content on a massive scale under cover of section 8.4
AP1 (Applicant): and retaining it for future searching and use.
AP1 (Applicant): Such a blanket approach falls foul of principles established by this court in Ess and Marpa and in MK and France in relation to the mass retention of DNA or fingerprints, even from those who were not charged or been acquitted.
AP1 (Applicant): The fact that it's now possible for the state to retain private information about the population at large, which it was not in the past, and that retaining such information may be operationally useful does not justify the intrusion of doing so.
AP1 (Applicant): Just because the state can do something doesn't mean that it should.
AP1 (Applicant): No doubt it would be possible to take DNA from every person in the United Kingdom and store it.
AP1 (Applicant): It could then be searched to identify the perpetrators of crimes where DNA evidence had been found.
AP1 (Applicant): The UK would say this was target discovery.
AP1 (Applicant): And no doubt this would assist the police in identifying hitherto unsuspected criminals.
AP1 (Applicant): Another word for that is not target discovery, but a fishing expedition.
AP1 (Applicant): And that is not a good enough reason to justify so wide an intrusion into everybody's Article 8 rights.
AP1 (Applicant): The UK seeks to argue that bulk intercept under 8.4
AP1 (Applicant): is a practical necessity.
AP1 (Applicant): They're wrong about that.
AP1 (Applicant): Even if it were necessary to intercept a whole cable, the excess data should then be promptly and automatically discarded.
AP1 (Applicant): But under 8.4, large amounts of data
AP1 (Applicant): belonging to citizens of no intelligence interest is not only being intercepted, it's being kept and subsequently analyzed and examined.
AP1 (Applicant): The UK disputes this as a matter of fact.
AP1 (Applicant): That dispute, of course, first ignores that that's precisely what this legislation permits without any proper formal control.
AP1 (Applicant): Secondly, we say it's factually incorrect.
AP1 (Applicant): It's of the very nature of this case that our knowledge of what the United Kingdom actually does is partial and limited.
AP1 (Applicant): But the Interception of Communications Commissioner himself said in May 2013 that it is GCHQ's practice to keep, and I quote, the entirety of all of the communications data that comes into the building.
AP1 (Applicant): That's at footnote six of our observations.
AP1 (Applicant): There can thus be no doubt that all the communications data is being kept.
AP1 (Applicant): Such information as we have been able to obtain about the UK's keeping of data is at paragraph 81 of our observations.
AP1 (Applicant): We include one example, the Optic Nerve Program, under which GCHQ collected and stored an image from every Yahoo chat user over five minutes.
AP1 (Applicant): That was a mass collection and storage of the content of communications.
AP1 (Applicant): 1.8 million users were affected.
AP1 (Applicant): 7% of the images were intimate and explicit.
AP1 (Applicant): These operations are now technically feasible, and they cannot be effectively prevented by the UK legislation because of the defects that I've identified.
AP1 (Applicant): The evidence shows they are, in fact, occurring.
AP1 (Applicant): The UK also says that the level of intrusion into privacy rights by bulk collection and searching is minimal.
AP1 (Applicant): That is wrong.
AP1 (Applicant): The true position is that because modern techniques make bulk data analyzable and comprehensible, the extent of the intrusion is potentially very great indeed.
AP1 (Applicant): And we address that point at paragraph 27 of our observations.
AP1 (Applicant): I've addressed Article 10, and I then don't propose to say more about discrimination at this stage, given the shortness of time.
AP1 (Applicant): I would like to say a few words about Article 6.
AP1 (Applicant): The UK says that when the IPT hears these complaints, it's not determining civil rights and obligations.
AP1 (Applicant): That submission is wrong for the reasons given by the IPT itself in Kennedy.
AP1 (Applicant): Whatever violations of Article 8 and 10 may be in other member states, in the United Kingdom, they are civil torts under the Human Rights Act.
AP1 (Applicant): A breach of Article 8 or Article 10 is a civil right in the United Kingdom, and therefore covered by Article 6.
AP1 (Applicant): At the time of the court's decision in Kennedy, the operation of the IPT had barely been tested.
AP1 (Applicant): Now it has been, and it's been shown to be neither independent nor fair.
AP1 (Applicant): We now know that the IPT, at the time it was considering these claims, was operating a secret policy, not to require the agencies to search their actual data holdings, but only requiring them to look at the search terms by reference to which their data holdings had been searched.
AP1 (Applicant): That was a basic flaw.
AP1 (Applicant): It will not uncover potential breaches, such as the situation where somebody's communications data has been retained for an excessive period of time but hasn't actually been accessed.
AP1 (Applicant): That policy was agreed at a secret meeting between MI5 and the IPT, of which the applicants were not informed.
AP1 (Applicant): Contrary to what Mr. Eadie says, that
AP1 (Applicant): was a wholly improper act by the tribunal, to meet in secret with one of the parties that appeared before it and to agree a process as to what disclosure was necessary.
AP1 (Applicant): That shows a fundamental lack of independence.
AP1 (Applicant): It was contrary to Article 6.
AP1 (Applicant): Notice of that meeting should have been given to applicants appearing before the tribunal, and they should have been told what policy had been agreed.
AP1 (Applicant): Secondly, in its conduct of these proceedings, the IPT's finding that Article 8 was complied with hinged in part on a closed secret hearing in which it inspected the so-called below-the-waterline policies and concluded that they contained significant safeguards.
AP1 (Applicant): I've already explained why that type of secret law cannot satisfy Article 8.
AP1 (Applicant): We also say that the procedure that was used by the IPT here is a breach of Article 6, because those secret policies remain unscrutinized, unanalyzed.
AP1 (Applicant): Finally, when making its findings of breach, insufficient details were provided about the unlawful surveillance of the NGOs, amnesty, and the Legal Resources Centre.
AP1 (Applicant): The effect is that details of the agency's unlawful conduct remain concealed.
AP1 (Applicant): There might be legitimate reasons for secrecy over lawful surveillance, but there's no good reason for secrecy to cover up unlawful conduct.
AP1 (Applicant): The failure to give proper reasons for its decision that there had been breaches of Article 8 was itself a breach of Article 6 by the tribunal.
AP1 (Applicant): For all these reasons, we invite the court to find breaches of Articles 8, 10, 14, and 6.
AP1 (Applicant): And I now hand over to Ms. Mountfield
AP1 (Applicant): to deal with the remaining issues.
AP2 (Applicant): Mr. President, members of the court,
AP2 (Applicant): as well as the TEMPRA program, which Ms. Rose has addressed
AP2 (Applicant): to you, the Snowden disclosures also revealed extensive interception of communications data by the United States National Security Agency, which data are then accessed, retained, and analyzed by the United Kingdom Intelligence Services and other state bodies in the United Kingdom.
AP2 (Applicant): That is what Snowden revealed.
AP2 (Applicant): But this case is about the practice of the UK Intelligence Services, not any particular data interception program by any particular third country state.
AP2 (Applicant): And the United States is by no means necessarily the only non-counsel of Europe security service with which the UK Intelligence Services have a close working relationship, and from which they may obtain and use large quantities of intercepted communications and communications data.
AP2 (Applicant): In relation to this third country intercept data, even the RIPA limits on interception, inadequate as they are, do not apply, because the interception is not conducted by a person who is in or governed by the law of the United Kingdom.
AP2 (Applicant): But the United Kingdom Intelligence Service access to this third country intercept data is no less damaging to privacy of persons inside the Council of Europe than the retention and use of data which has been gathered by the UK Intelligence Services themselves.
AP2 (Applicant): So take, for example, two people, A and B, and they're in next door flats or offices in the United Kingdom.
AP2 (Applicant): And they communicate by email, and their communications or communications data are accessed and analyzed and stored by the UK Intelligence Services.
AP2 (Applicant): If A and B's communication happens to be routed through a computer server which is located in the United Kingdom, then the government accepts that sections 8, 1, and 5, 6, and 16 of RIPA apply.
AP2 (Applicant): In other words, whatever defects there may be to those provisions, they are relatively precise and individually tailored legal safeguards.
AP2 (Applicant): And those are ones that the state considers to be necessary.
AP2 (Applicant): So the questions for the court are, why those protections are not also required if A and B happen to communicate through a server located in the United States?
AP2 (Applicant): That's the question of external communications, which Ms. Rose has addressed.
AP2 (Applicant): And how it can be acceptable that no warrant and no RIPA safeguards at all are required if the actual interception happens to have been conducted by a third country intelligence service, even though the data from that is then accessed and analysed and stored by the United Kingdom Intelligence Services in precisely the same way as if it had conducted the interception itself?
AP2 (Applicant): The route by which that data travels is a matter of chance.
AP2 (Applicant): And so now is the identity of the agency which happens to conduct the interception.
AP2 (Applicant): So the fact that domestic law offers such different protections to the same uses by the same security service of the same data, simply by virtue of the route by which it's travelled or the identity of the agency which has intercepted it, appears quite arbitrary.
AP2 (Applicant): It certainly calls for a rational explanation.
AP2 (Applicant): And none has been provided.
AP2 (Applicant): In the RE and the United Kingdom case, this court established in paragraphs 129 and 30 of its judgment that the decisive factor in deciding what Article 8 safeguards are needed to prevent arbitrary or disproportionate interference with privacy is the extent of the interference with an individual right to respect for a person's private life in a particular context, not the definition of the technological means used to conduct the intrusion.
AP2 (Applicant): By parity of reasoning, nor should the extent of protection which is required or applied depend on whether the state itself operates the technology or relies on a partner outside the Council of Europe to do the intercepting and share the product.
AP2 (Applicant): And the nature of the internet now and the nature of the interception capabilities of security services while data is being transmitted mean that there is no longer, as there once may have been, any obvious difference between what a well-equipped foreign intelligence service can do and what the UK's own security services can do.
AP2 (Applicant): Third-country intercept data is likely to be precisely the same data that the UK intelligence services could gather for themselves if they had the resources and capability.
AP2 (Applicant): And that's particularly true, and obviously true, of US interception because the United States is, as the National Security Agency itself has said, a principal hub in the world's telecommunications system.
AP2 (Applicant): So because the central privacy concern which arises from the Snowden disclosures is the UK intelligence services' extensive and previously secret abilities to access and store and use what may be profoundly private communications, the same safeguards should be applied, whether that is done directly by the UK's intelligence services using their own interception capacity or through data sharing with intelligence agencies located outside the Council of Europe.
AP2 (Applicant): The invasion of privacy is precisely the same if the UK intelligence services access third-country intercept.
AP2 (Applicant): And since the invasion of privacy is the same, the necessary safeguards against arbitrary or disproportionate activities are no less.
AP2 (Applicant): There simply can be no principled justification for a lesser degree of legal protection.
AP2 (Applicant): But contrary to the case that Mr. Eadie presented to you,
AP2 (Applicant): there is indeed no domestic legal framework which adequately specifies the authority upon which and the circumstances in which third-party intercept data can be accessed and stored and used by the United Kingdom intelligence services.
AP2 (Applicant): And the government accepts that there is no express statutory framework analogous to RIPA which governs this.
AP2 (Applicant): And so Mr. Eadie is wrong to say that it is nonsense to suggest
AP2 (Applicant): that there is intercept which is not covered by a warrant.
AP2 (Applicant): There is, and paragraph 12.4 of the Code of Practice
AP2 (Applicant): illustrates that.
AP2 (Applicant): The Code of Practice accepts, sorry, the government instead relies on a patchwork, a very broad enabling provisions.
AP2 (Applicant): They've buried the details of that in footnote 72 of their observations.
AP2 (Applicant): But this is not sufficiently tailored to provide reasonable or sufficient foreseeability as to the circumstances in which third-country interception data is used by the UK intelligence services and other state agencies.
AP2 (Applicant): In particular, it is not the Secretary of State or even a senior official who decides whether it is necessary to obtain or analyze or store the data received for the very broad permitted statutory purposes.
AP2 (Applicant): The legislation provides no concrete guidance to that official or even the public as to how such a decision will be taken or in accordance with what principles.
AP2 (Applicant): So in effect, there is a broad and inadequately constrained statutory discretion to obtain and analyze and store third-country intelligence intercept for any of the purposes which the UK intelligence services may deem it necessary.
AP2 (Applicant): When these applications were brought, there was not even any provision in any Code of Practice which addressed the issue of intelligence sharing at all.
AP2 (Applicant): So this case is on all fours with the Liberty and the UK decision in that respect.
AP2 (Applicant): And that level of opacity was unnecessary and unjustified.
AP2 (Applicant): And that illustrated by the fact that the code was changed in January 2016 so that Chapter 12 did make some mention of this.
AP2 (Applicant): But in fact, Chapter 12 does not answer the applicants' objections in any event.
AP2 (Applicant): It doesn't provide sufficient clarity as to the process by which or the principles upon which third-party intercept data will be used so as to comply with Article 8.
AP2 (Applicant): And I invite your attention in particular to paragraph 12.4
AP2 (Applicant): little Roman 3 to illustrate the breadth of the circumstances in which this data can be used.
AP2 (Applicant): So the respondent is forced to fall back on secret undisclosed arrangements, which it says are sufficient to ensure that data is not used in an arbitrary or disproportionate way, and the application of the REAPER principles to foreign intercept as a matter of policy.
AP2 (Applicant): And that is not enough to comply with the quality of law requirements in Article 8.
AP2 (Applicant): And the uses of technologies and known interception capacities have, as Ms. Rose said, changed radically
AP2 (Applicant): since this court last considered interception by the United Kingdom.
AP2 (Applicant): But the core values and the importance of the individual sphere of private interaction and private correspondence, which the convention is intended to respect, protect, and preserve, have not changed.
AP2 (Applicant): And so their importance has, if anything, been augmented by the pace and scale of the increase in the technological capacity of foreign intelligence services, as this court said in the Schaubo case.