TrustHLT/LaCour huggingface dataset:
GR1 (Government): And the amount of online data through which the intelligence services must sift to find the sorts of communications that are vital to enable the public to be protected has multiplied exponentially.
GR1 (Government): So the capabilities that are the subject of this application are absolutely vital.
GR1 (Government): Before turning to the extensive safeguards that are in place, it is important to spend a little time on the true extent of any interference with Article 8 rights.
GR1 (Government): That is important because the applicants bring, in this case, on a premise about what bulk interception entails, which is simply false.
GR1 (Government): The true operation of the bulk interception regime is as follows.
GR1 (Government): First, in order to obtain any wanted communications at all flowing through a communications bearer, it is necessary to intercept its entire contents.
GR1 (Government): Without bulk interception, it would not be technically possible to obtain any information from the bearer in the first place.
GR1 (Government): Secondly, only those bearers that are the subject of an interception warrant can be and are accessed.
GR1 (Government): Under the code that is in place in the United Kingdom, the bearers chosen must be those most likely to carry external communications meeting the descriptions of materials certified by the Secretary of State.
GR1 (Government): For instance, bearers carrying a high proportion of communications from northern Syria.
GR1 (Government): Under the code, highly detailed information is required for any warrant application, explaining why it is necessary and proportionate for statutory purposes.
GR1 (Government): Those applications are subject to the oversight of the Commissioner.
GR1 (Government): He examines the paperwork for a high proportion of these.
GR1 (Government): They are not rolling warrants.
GR1 (Government): They must be regularly reviewed to ensure that they remain necessary and their renewal must be justified.
GR1 (Government): Thirdly, only a tiny proportion of communications so intercepted can be and are ever selected and retained for possible examination.
GR1 (Government): They are subjected to automated searches in near real time for strong selectors, for instance, a known terrorist phone number.
GR1 (Government): A limited proportion are also subject to more complex queries, for instance, access to known extremist material together with use of particular language associated with terrorism.
GR1 (Government): In each case, just the communications so selected are retained and all other communications are discarded.
GR1 (Government): In response, therefore, to paragraph 25 of the applicant's obligations, the chance that innocent communications between a group of friends in London arranging a meeting could be selected or retained on this basis is nil.
GR1 (Government): Moreover, it is only here when a communication is pulled from the amorphous soup of data collected from a bearer that there is in truth any meaningful interference with an individual's privacy rights.
GR1 (Government): The overwhelming majority of communications flowing over a relevant bearer are filtered and discarded before there is any possibility that they could ever be looked at.
GR1 (Government): The fact that an individual's data may form part of the discarded soup is not a reason to consider that his article 8 rights have been substantially infringed.
GR1 (Government): As the commissioner put it in his 2013 report, in the real world, intrusion in this context into the privacy of innocent persons would require sentient examination of individuals' communications.
GR1 (Government): That's tab 35 of your bundles, paragraph 6.63.
GR1 (Government): Fourthly, only a tiny proportion even of this retained material is ever examined.
GR1 (Government): And when that occurs, it requires a good and sufficient justification for doing so.
GR1 (Government): An analyst who wishes to examine any selected communication must record why such examination is necessary and proportionate for the purposes in the Secretary of State's certificate.
GR1 (Government): And under the Code, those auditable records are subject to oversight by the commissioner.
GR1 (Government): Finally, communications selected for examination and related communications data can only be retained for a limited period, in most cases a maximum of two years, and should, so far as possible, be automatically deleted at the end of that period.
GR1 (Government): This, again, is written into the Code and is overseen by the commissioner.
GR1 (Government): So the spectre that the applicants seek to create of a mass of untrammelled intrusion is just that, we submit, a spectre.
GR1 (Government): What then of the safeguards?
GR1 (Government): My submission is that the safeguarding regime is extensive, multilayered, and fully meets the Convention requirements for all of the reasons given by the IPT in their careful judgment in the Liberty Privacy case.
GR1 (Government): The judgment is behind tab 14 in your bundles.
GR1 (Government): They properly understood the Convention jurisprudence and its relevant requirements for protection against arbitrary or abusive conduct.
GR1 (Government): Their conclusion was that the system in its essentials was in accordance with law and proportionate, and in accordance with all of Articles 8, 10, and 14.
GR1 (Government): What follows is a summary of the main aspects of the safeguarding regime, and given time, no more than that.
GR1 (Government): Perhaps two initial points at the outset of considering safeguards.
GR1 (Government): First, the applicants paint these applications as the latest in what they claim is a long line of cases about the UK's failure to give effect to privacy rights.
GR1 (Government): That is, with respect, a wholesale mischaracterization.
GR1 (Government): The reason why RIPA was enacted in the first place was precisely to ensure that the UK's domestic law complied with Convention rights.
GR1 (Government): The interception cases concerning the UK, which the applicants cite at paragraph 19 of their observations, are all cases about the legal regimes predating RIPA.
GR1 (Government): That includes the Liberty case from 2009, which concerned the UK's former bulk surveillance regime under the Interception of Communications Act 1985, when there was no code setting out safeguards on the use of statutory interception powers.
GR1 (Government): The position, of course, has moved on since.
GR1 (Government): Not only is the entirety of the code in the public domain setting out detailed safeguards for every stage of the operation of the Section 8-4 regime, from the application for a warrant all the way through to destruction of records, but the code was also extensively revised in January 2016 to strengthen and update those safeguards.
GR1 (Government): In fact, this Court has considered the adequacy of RIPA and the 2002 version of the code, at least, in considerable detail.
GR1 (Government): It did so in Kennedy and the United Kingdom, where it confirmed that the regime for targeted interception of communications under Section 8-1 of RIPA was compatible with Article 8.
GR1 (Government): It is true, of course, that the regime under consideration in Kennedy did not concern bulk powers, but the Court's observations about the significance of the code and the safeguards provided by the Intelligence and Security Committee in Parliament, the Commissioner, and the IPT, the Tribunal, remain just as important to these applications as they were in Kennedy itself.
GR1 (Government): Nor, and this is the second initial point, is it relevant, as the applicants do, to compare the detailed content of the UK's legal regime with the so-called G10 regime at issue in the Weber case.
GR1 (Government): In Weber, the Court found that the two-stage process under which wireless communications were intercepted in bulk and then subject to searching using relevant catchwords was compliant with Article 8.
GR1 (Government): That two-stage process is also how the Section 8-4 regime operates.
GR1 (Government): The test, therefore, is not, we suggest, whether in one or more respects the Section 8-4 regime is less tightly defined than the German strategic monitoring regime at issue in Weber.
GR1 (Government): Rather, the question is whether, taken as a whole, the Section 8-4 regime offers adequate safeguards against abuse and meets the general criteria for an interception regime set out at paragraph 95 of Weber.
GR1 (Government): And the answer to that question, we submit, is clearly yes.
GR1 (Government): The Section 8-4 regime, if I start with that, is contained in a combination of primary legislation, RIPA, published codes, in particular the 2016 code behind tab 33 of your bundle, and internal arrangements overseen by a specially appointed commissioner and ultimately the tribunal.
GR1 (Government): The bedrock of those regimes is the convention concepts of necessity and proportionality.
GR1 (Government): Those fundamental principles govern all aspects of information and intelligence, from obtaining it in the first place, to examining it, to handling, storing, and disclosing it, and finally to its retention and deletion.
GR1 (Government): It involves a requirement, backed in detail by the code, for warrants to be obtained from the Secretary of State.
GR1 (Government): Warrants are required to collect any data, including communications data.
GR1 (Government): It is, therefore, nonsense to suggest, as the applicants do at paragraph 115 of their observations, that, quote, no protection is offered at all for the collection of communications data.
GR1 (Government): The warrant process governs the collection of any data under that regime, and all the same safeguards under Section 15 of RIPA apply to communications data as they do to the content of communications.
GR1 (Government): The fact that Section 16 of RIPA does not apply to communications data does not leave the purposes for which it can be used and stored at large.
GR1 (Government): Communications data can only be accessed for the intelligence services' statutory purposes in the Security Service Act of 1989 and the Intelligence Services Act of 1994, and only then where necessary and proportionate.
GR1 (Government): Those statutory purposes are, to all intents and purposes, no wider than the purposes for which a warrant can be issued under Section 5, sub 3 of RIPA.
GR1 (Government): Moreover, it would not be possible for the constraints upon examination of the communications of persons known to be within the British Islands imposed by Section 16 of RIPA to apply to communications data as well as communications themselves.
GR1 (Government): In order to assess whether a person is within the British Isles in the first place, the intelligence services need to use communications data.
GR1 (Government): More fundamentally, perhaps, such constraints could not sensibly be imposed in the first place, because communications data are used, in particular, to discover as yet unknown threats without knowing who is responsible for them or where they are located.
GR1 (Government): The safeguards built into this regime include a comprehensive and effective system of oversight by the ISC, a parliamentary committee, the commissioner, a former law justice of appeal, and a specialist tribunal, the IPT.
GR1 (Government): And the IPT is of particular importance here.
GR1 (Government): In the liberty proceedings, the judgment is at tab 14 of your bundles, it examined in detail the very issues now raised in these applications.
GR1 (Government): It sat as a panel of five distinguished lawyers, including two high court judges.
GR1 (Government): It held open hearings, initially over five days.
GR1 (Government): It considered a very large quantity of evidence and submissions.
GR1 (Government): The applicants were represented by experienced teams of leading and junior counsel.
GR1 (Government): The IPT considered and applied articles 8, 10, and 14 of the convention and the convention jurisprudence relating to them.
GR1 (Government): It also conducted closed hearings in which it examined the actual systems and the actual practices and policies applied by the agencies in this context.
GR1 (Government): It was therefore able to get a complete and accurate picture of the true extent of the safeguarding regime and its operation in practice.
GR1 (Government): The IPT, for the purpose of those closed hearings from which necessarily the applicants were excluded, were assisted by leading and junior counsel acting as counsel to the tribunal.
GR1 (Government): That enabled a thorough and rigorous examination of matters in closed.
GR1 (Government): It included examination of the intelligence services internal arrangements for safeguarding privacy rights, which could not be disclosed for good reasons of national security.
GR1 (Government): What the IPT described in their judgment as the below the waterline arrangements.
GR1 (Government): The IPT ensured, however, that the disclosure of all those parts of them that it considered could safely be placed in the public domain were placed in the public domain.
GR1 (Government): But of course, some part of them unsurprisingly, and some part of the IPT's consideration of the safeguarding regime had to be closed in order to avoid the risk of damage to national security.
GR1 (Government): The applicants say that these arrangements are, as they put it at 102 of their observations, analogous to the undisclosed arrangements criticized by the court in Liberty and the UK.
GR1 (Government): That complaint, of course, entirely ignores the published code.
GR1 (Government): But the two key points are these.
GR1 (Government): First, the internal arrangements themselves provide a further and important safeguard against abusive or arbitrary action, as this court itself accepted in its Liberty judgment, C power 67.
GR1 (Government): They are the practices and policies that members of the agencies must follow.
GR1 (Government): Secondly, it is an equally important part of the safeguarding regime that the IPT is able to consider those arrangements with a view to assessing both their effectiveness as arrangements and how they are operated in practice.
GR1 (Government): The IPT did precisely that with counsel to the tribunal's assistance in the Liberty proceedings.
GR1 (Government): And that meant that the judgments that they made about the adequacy of the safeguarding regimes could be formed on the basis of a complete and accurate safeguarding picture.
GR1 (Government): So the ability to examine those matters necessarily enclosed is, we suggest, an important safeguarding virtue and not a vice.
GR1 (Government): The various limitations which the applicants contend should be now superimposed upon bulk interception are, we submit, both unnecessary and in some respects back to the balances I mentioned at the outset, positively and deeply damaging.
GR1 (Government): The requirement that they suggest for objective evidence of reasonable suspicion would in practice render bulk interception either impossible or largely ineffective.
GR1 (Government): It is unclear at what point they contend that such a requirement should be imposed, but if reasonable suspicion were required in relation to the entire product of interception, then bulk interception itself would be impossible.
GR1 (Government): That has never been suggested by this court and is directly contradicted by Weber.
GR1 (Government): Even a requirement of reasonable suspicion in relation to access to the intercepted material would emasculate the regime because, as I've explained, a primary purpose of the 8-4 regime is to identify threats and targets in the first place.
GR1 (Government): The suggestion that one could not investigate, for example, nuclear proliferation without knowing the identity of persons in the nuclear material supply chain would, we suggest, be extraordinary and highlights precisely the concern with an introduction of a requirement of that kind.
GR1 (Government): The requirement for prior judicial authorisation of interception warrants is not a requirement, we submit, of the court's case law.
GR1 (Government): This court has deliberately trodden a careful line on this issue and we submit it should continue to do so.
GR1 (Government): It has found that proper judicial oversight is required, but that such oversight may be either ex ante or ex post facto.
GR1 (Government): Given the strong independent and judicial safeguard provided by the IPT, the ability of any person to complain to the IPT at that ex post facto oversight is, we say, quite sufficient.
GR1 (Government): Indeed, its effectiveness is illustrated in the very proceedings from which this application comes.
GR1 (Government): Finally, a general requirement for subsequent notification is not required here either and would also be highly damaging.
GR1 (Government): The purpose of notification is to enable a person who suspects that his communications have been targeted to have access to an effective remedy.
GR1 (Government): That purpose is satisfied by the extremely wide jurisdiction of the IPT to examine a complaint of unlawful interception.
GR1 (Government): Whether or not the complainant has any evidence of interception in his case, see Kennedy 167.
GR1 (Government): A general requirement of notification would unnecessarily inform criminals or terrorists of the investigative techniques that the agencies use in the context of bulk interception, so would remain operationally damaging even if the particular investigation in question had ended.
GR1 (Government): It is in those circumstances unsurprising that in its CJU reference judgment recently, the IPT described any such requirement in a context such as this as being, paragraph 63 of that judgment, very damaging to national security and going on to note in any event at paragraph 64 that it would be, very difficult to know how a requirement to give notification should be interpreted in respect of the acquisition or use of a bulk database and how it could be practically implemented.
GR1 (Government): So there are, we submit, for all of those reasons, serious, multi-layered legal protections against arbitrary or abusive or unnecessary interference with the right to respect for privacy.
GR1 (Government): In practice, exactly the same safeguards apply equally to intercepted communications shared by the UK's intelligence partners of the type at issue in the other part of these applications.
GR1 (Government): The Secretary of State has never requested such material without a RIPA warrant already being in place, but when it is acquired, it must be treated on the same basis and according to the same safeguards applied to communications intercepted by the agencies themselves.
GR1 (Government): We see for that purpose chapter 12 of the 2016 code.
GR1 (Government): I make three short points about the applicant's case on intelligence sharing.
GR1 (Government): First, we submit that the Weber criteria cannot apply unmodified in this context.
GR1 (Government): The reason is not to do with the extent to which the sharing of foreign intelligence may interfere with privacy.
GR1 (Government): It is because there is no sensible basis upon which to distinguish intercept material from any other types of information that might in principle be obtained by a foreign intelligence agency.
GR1 (Government): And because the intelligence services will often not know how material provided to them by that foreign intelligence agency has been obtained, let alone have any control over it.
GR1 (Government): The Weber criteria are of course, but only appropriate for a regime in which the state receiving intelligence knows how it has been obtained and is able to control that method.
GR1 (Government): That's why they can sensibly be applied to covert surveillance of the kind addressed in RE and the United Kingdom.
GR1 (Government): That is not the case for the receipt of intelligence from foreign partners.
GR1 (Government): Secondly, the applicants mischaracterize the nature of the intelligence sharing regime because they ignore the existence of chapter 12 of the code.
GR1 (Government): That omission, it might be thought is most egregious.
GR1 (Government): That's at tab 33 of the code.
GR1 (Government): In the paragraphs of their observations headed basis in law, where they rely upon a statement from Anderson that there is quote, no code of practice governing how exchanges should be authorized.
GR1 (Government): Of course, that statement was made before the code was revised in January, 2016 to incorporate chapter 12.
GR1 (Government): To similar effect, those parts of their observations which focus on and criticize the disclosure, that's the disclosure that was made in the course of the proceedings before the IPT, tab 14, paragraph 47.
GR1 (Government): Those criticisms ignore the fact that the disclosure is now incorporated in the code.
GR1 (Government): That the code is a statutory document subject to consultation, which can only be amended with the consent of both houses of parliament.
GR1 (Government): And that this court has expressly found the provisions of the code can be taken into account in assessing foreseeability.
GR1 (Government): B. Kennedy in the United Kingdom at 157.
GR1 (Government): Thirdly, the applicants state that the arrangements appear to provide no protection at all for communications data.
GR1 (Government): Again, we respectfully disagree.
GR1 (Government): Chapter 12 of the code expressly states that where intercepted content or communications data are obtained from a foreign intelligence partner, they must be subject to the same internal rules and safeguards applying to the same categories of content or data obtained directly as a result of RIPA interception.
GR1 (Government): In relation to the quality of law, to move to that subject briefly, the applicant's core complaint is to say that the regime is, as they put it, so complex as to be inaccessible.
GR1 (Government): But that complaint, we suggest, falls at the first hurdle here.
GR1 (Government): There is no dispute between the parties as to what the regime actually is, nor any contention by the applicants that they are unable to understand it.
GR1 (Government): The prime criticism made in this regard by independent reviewers has been that the legal framework for surveillance powers is fragmented.
GR1 (Government): However, that is a generalized complaint about a range of powers rather than one directed at the eight-four regime.
GR1 (Government): And it is a complaint that the government has now addressed by bringing most of the relevant powers together in a single new act, the Investigatory Powers Act 2016.
GR1 (Government): Three specific, and it might be thought subsidiary, points need to be picked up.
GR1 (Government): First, it is said that there is an absence of legal safeguards on the transfer of data out of the UK or the EU because the intelligence services are exempted from the eighth data protection principle.
GR1 (Government): That is simply wrong.
GR1 (Government): The Code sets out a number of such safeguards in detail at paragraph 7.3 to 7.5.
GR1 (Government): Secondly, the applicants criticized the distinction between external and internal communications in the section eight-four regime is unacceptably vague.
GR1 (Government): Again, they are wrong.
GR1 (Government): An external communication under section 20 of RIPA is one sent or received outside the British Islands.
GR1 (Government): A message from a sender in the British Islands sent to an ultimate recipient outside is treated as internal, irrespective of how it is routed.
GR1 (Government): There's nothing unclear about that approach.
GR1 (Government): Thirdly, the applicants attack the term national security as the basis for interception.
GR1 (Government): This court has recently found in RE and the United Kingdom that the term national security as used in RIPA is sufficiently clear to give citizens an adequate indication of the circumstances in which public authorities may resort to interception.
GR1 (Government): We see paragraph 133 of this court's judgment in that case.
GR1 (Government): There is no reason we submit to depart from that conclusion.