TrustHLT/LaCour huggingface dataset:
GR1 (Government): I will be much, much shorter in relation to the three remaining topics, which we've dealt with in detail in our observations.
GR1 (Government): So far as article six is concerned, in relation to engagement, the court has consistently held that legal challenges to secret surveillance by the state do not engage article six because they involve the exercise of state authority in the public interest.
GR1 (Government): See, for example, Klaas and Germany and Echimger and Bulgaria, the latter of which, of course, postdated the Kennedy decision.
GR1 (Government): We say that is the correct analysis.
GR1 (Government): We also note that the determination of a person's rights under articles eight or 10 does not necessarily involve any determination of civil rights.
GR1 (Government): If it did, Klaas and Echimger would have been decided differently.
GR1 (Government): As the ground chamber has observed in Marien, France, the fact that a dispute may have repercussions for private life does not suffice to bring the proceedings within the scope of civil rights protected by six one.
GR1 (Government): In relation to breach, the findings in Kennedy we submit are powerful against breach of article six.
GR1 (Government): The applicant's principal argument under this head concerns a file note, tab 11 of the core bundle, of a meeting between the security service and the IPT.
GR1 (Government): They misstate both the content and the effect of the note.
GR1 (Government): First, and contrary to the applicant's case, the note does not state that the security service, quote, would only search its records of persons specifically targeted.
GR1 (Government): It said it would not search large databases about the general population, for example, an electoral register, and that was a perfectly sensible approach.
GR1 (Government): It would be impracticable and pointless for the intelligence services to search through data sets concerning the general population when asked to respond to a complaint of unlawful surveillance if the complainant's data in such data sets was never accessed.
GR1 (Government): Nor was this some form of secret agreement as it's presented with the IPT.
GR1 (Government): It was not an agreement at all.
GR1 (Government): Secondly, there is no reason at all to think that the IPT did anything improper in attending such a meeting, or should have told the applicants about it.
GR1 (Government): The IPT is a specialist tribunal, and the nature of its casework means its members need to have a level of background understanding about the intelligence services' practices and procedures.
GR1 (Government): The meeting was simply an example of that.
GR1 (Government): In any case, the meeting was held in 2007, some six years before this case was brought.
GR1 (Government): Thirdly, there is no merit whatsoever in the suggestion that the security services' approach disabled, as it's put by the applicants, the IPT from properly investigating the applicants' complaints.
GR1 (Government): One only has to read their judgment to see that.
GR1 (Government): So far as Article 14 is concerned, I've said all I wish to say about that.
GR1 (Government): The same complaint that is now made was made before the IPT.
GR1 (Government): They dealt with it in their judgment.
GR1 (Government): They found at base that whatever difference of treatment there might be was fully justified in relation to the regime under Section 16, and I have no more to add in relation to that.
GR1 (Government): I finish, perhaps rather unusually finish, with admissibility.
GR1 (Government): But it is at least worth making a couple of short points in relation to admissibility to finish.
GR1 (Government): My submission is that much of these complaints should be declared inadmissible.
GR1 (Government): Indeed, the only complaint that this court should be entertaining is 10HR's application, and then only insofar as it concerns the Section 8.4 regime.
GR1 (Government): There are two points.
GR1 (Government): The first of them is victim status.
GR1 (Government): Neither the Big Brother Watch applicants nor the 10HR applicants who bring complaints about the intelligence-sharing regime have put forward any basis on which they are at realistic risk of having their communications intercepted by the US and shared with the UK.
GR1 (Government): Indeed, they assert that none of the statutory conditions for such sharing is met.
GR1 (Government): Moreover, the IPT has already found that the 10HR applicants were not victims of unlawful intelligence-sharing, so the conditions for victim status set out by the Grand Chamber in Zakharoff are not satisfied.
GR1 (Government): As to the Bureau of Investigative Journalism's complaint about Section 22 of RIPA, the problem is even starker there.
GR1 (Government): The BIJ complained to this court that its communications data might have been intercepted under Section 22, but Section 22 of RIPA has nothing whatever to do with interception.
GR1 (Government): It concerns notices to service providers requiring the provision of communications data.
GR1 (Government): Nothing in the BIJ's application or evidence suggests that such a notice has been issued.
GR1 (Government): They do not belong to a group of persons targeted by the Section 22 regime, and if they were concerned that such notice had been issued, they could have applied to the IPT, which would have investigated.
GR1 (Government): The second of the points, and the final point, is non-exhaustion of domestic remedies.
GR1 (Government): The effectiveness and benefits of the IPT are, we respectfully submit, absolutely clear from the detail of their judgment in the liberty privacy proceedings, and the applicants, all applicants, should be required to use that process.
GR1 (Government): In the liberty proceedings, the IPT gave a thorough and comprehensive judgment, which clearly set out all aspects of the interference with the rights of the applicants in those cases.
GR1 (Government): It provided appropriate remedies, and where it found the general legal regime unlawful, the government acted to change it.
GR1 (Government): That has been the government's universal reaction to IPT rulings.
GR1 (Government): This court, of course, has recently found, in Antony, France, and the UK, that the IPT's lack of power to make a declaration of incompatibility under the Human Rights Act did not mean that the applicants had suffered, quote, a significant disadvantage, where the government similarly acted to change the law, following a thorough and comprehensive IPT judgment.
GR1 (Government): The court declared their applications inadmissible accordingly, and we submit that the logical corollary of this court's approach in the France application is that the IPT should now be considered an effective remedy that needs to be pursued.
GR1 (Government): For those reasons, Mr. President, members of the court,
GR1 (Government): the government invites this court to declare the applications inadmissible.
GR1 (Government): Alternatively, we ask the court to decide on the merits that there has been no violation of the convention.
Linos-Alexandre Sicilianos (JudgeP): I now invite Mrs. Rose QC.
AP1 (Applicant): the issues before the court today first came to light as a result of the disclosures of classified information made in 2013 by Edward Snowden, who formerly worked for the CIA and the American National Security Agency.
AP1 (Applicant): Mr. Snowden revealed the existence
AP1 (Applicant): of two previously unknown practices carried out by the UK intelligence agencies.
AP1 (Applicant): First, the extent of their involvement in the bulk interception of telephone and internet communications which traverse the United Kingdom.
AP1 (Applicant): The Snowden revelations made clear for the first time the enormous scale of such collection, and the fact that GCHQ do not simply intercept the communications in bulk, scan them, and keep the data of the persons in whom they have an interest.
AP1 (Applicant): In fact, they retain and store very large volumes of data relating to millions of people, even where those individuals are of no intelligence interest at all.
AP1 (Applicant): This activity is conducted under the authority of general warrants, authorized only by the Secretary of State without any prior approval by a judge or by any independent body.
AP1 (Applicant): The United Kingdom government refuses to confirm or deny whether they keep the content of the communications they collect.
AP1 (Applicant): However, they do accept that they keep all of the communications data.
AP1 (Applicant): In other words, the data that is associated with a communication, which reveals a person's location, the identity of the persons or websites they've contacted, and the occasions when contact has been made.
AP1 (Applicant): Such data enables intrusion into the most intimate aspects of a person's daily life.
AP1 (Applicant): The United Kingdom legislation under which this program is conducted is, of course, the regulation of Investigatory Powers Act 2000, commonly known as RIPA.
AP1 (Applicant): The provisions of RIPA are so complex and opaque that the existence and extent of this activity had not previously been appreciated, even by the expert NGOs operating in this field, including the applicants who are before this court today.
AP1 (Applicant): It is now clear that the degree of interception identified in the case of liberty against the United Kingdom, considered by this court in 2008, represented only the tip of the iceberg.
AP1 (Applicant): This court ruled in the liberty case that the United Kingdom's arrangements under RIPA's predecessor, the Interception of Communications Act 1985, failed the requirement under Article 8 that the arrangements should be in accordance with law.
AP1 (Applicant): The extent of bulk surveillance which is now known is far wider than was appreciated then, and the applicable safeguards are even more clearly defective.
AP1 (Applicant): The second practice that was revealed by Mr. Snowden
AP1 (Applicant): is the fact that the American National Security Agency and other foreign agencies share with the United Kingdom the data that they have themselves intercepted and collected.
AP1 (Applicant): Even the minimal provisions of RIPA do not apply to the use of this material by the UK agencies.
AP1 (Applicant): We say that what has now come to light shows that the UK is interfering with the applicants' rights to respect for their private lives in ways that are not in accordance with the law because of the lack of foreseeability and accessibility of the applicable legal principles, which lack the necessary basic safeguards essential to prevent the risk of abuse or arbitrary or unlawful conduct by the state, and which are disproportionate.
AP1 (Applicant): The activities also breach the applicants' rights to freedom of expression, including the vitally important right for journalists and human rights NGOs freely to impart and receive information in confidence.
AP1 (Applicant): And they discriminate indirectly on the grounds of nationality by treating those who are located outside the United Kingdom less favorably than those inside the United Kingdom without justification.
AP1 (Applicant): Finally, but importantly, we say that the specialist tribunal appointed under RIPA to hear these complaints, the Investigatory Powers Tribunal, operates in a way that breaches Article 6.
AP1 (Applicant): It lacks independence from the agencies whose conduct it has been created to supervise.
AP1 (Applicant): Its procedures are flawed and unfair.
AP1 (Applicant): And the remedies it can give are inadequate.
AP1 (Applicant): There are three features of the background against which these applications have been made which deserve emphasis.
AP1 (Applicant): First, we do say that the United Kingdom has a history of persistent and repeated breaches of Article 8 in the field of state surveillance, which its domestic courts have failed properly to restrain.
AP1 (Applicant): We've dealt with this in our observations at paragraphs 4 to 26.
AP1 (Applicant): It is possible that this record reflects the United Kingdom's relative good fortune.
AP1 (Applicant): Unlike some other member states of the Council of Europe, the UK has not so far had to learn the bitter experience of the extent to which secret and unaccountable surveillance by the state can undermine democracy and freedom.
AP1 (Applicant): Secondly, this is an area of very rapid technological change.
AP1 (Applicant): We address this important issue in our observations at paragraphs 9 to 12 and 79 to 89.
AP1 (Applicant): The rapid technological development has two consequences.
AP1 (Applicant): First, the intrusion into the private lives of individuals which is represented by this activity is far greater now than it would have been only a few years ago because so much private and personal material is online and because it can now be easily stored and searched in vast quantities.
AP1 (Applicant): And secondly, features of the domestic legislation which were intended to provide some sort of safeguard for privacy rights have now been overtaken by technological change which renders them ineffective.
AP1 (Applicant): An example of this is the distinction in RIPA between internal and external communications based on whether the sender and the recipient are both in the British islands or one of them is abroad.
AP1 (Applicant): That distinction, which is the foundation for a differential regime of protection under RIPA, is now virtually meaningless for reasons I shall return to.
AP1 (Applicant): Finally, we acknowledge the security threats and the problems posed by serious crime which are relied on by the United Kingdom to justify its activities.
AP1 (Applicant): Nothing that we say today should be taken in any way to seek to minimize or understate the seriousness of these threats.
AP1 (Applicant): They are grave.
AP1 (Applicant): And it is important that the competent authorities have the right tools to be able to address them.
AP1 (Applicant): Combating these threats requires concerted police and intelligence activity, including the use of covert surveillance and the interception of communications.
AP1 (Applicant): However, these operations must be conducted within the framework of the convention and the framework of law.
AP1 (Applicant): Excessive or unaccountable state surveillance puts at risk the very core values of the free and democratic societies that terrorism seeks to undermine.
AP1 (Applicant): The United Kingdom has not sought to derogate from Articles 8 or 10 of the convention because of the severity of the current security threats.
AP1 (Applicant): And crucially, the government does not and could not suggest in this case that proper safeguards cannot be put in place to protect fundamental rights without jeopardizing national security.
AP1 (Applicant): The lack of safeguards in the UK's legislation is out of line with that of other Council of Europe states, such as the German regime that we've examined at paragraph 21 of our observations.
AP1 (Applicant): Moreover, since the events with which this application is concerned, the United Kingdom has, as Mr. Eadie has said,
AP1 (Applicant): produced new legislation which contains additional safeguards, under pressure in particular from the CJEU.
AP1 (Applicant): We addressed that legislation at paragraphs 28 and 129 of our observations.
AP1 (Applicant): We do not accept that the new safeguards are sufficient.
AP1 (Applicant): That's an issue for another day.
AP1 (Applicant): But for today's purposes, it is enough for us to point out that the government's assertion that the opacity of the old RIPA regime was necessary to enable the effective protection of national security is untenable.
AP1 (Applicant): We invite this court to declare the breaches that we've identified.
AP1 (Applicant): It will then, of course, be for the United Kingdom authorities to implement the court's judgment and to remedy the breaches.
AP1 (Applicant): Contrary to the, with respect, hyperbolic suggestion in the United Kingdom government's written observations, such an approach in no way undermines the sovereignty of the United Kingdom.
AP1 (Applicant): It is merely the proper performance of the function of this court, whose jurisdiction the United Kingdom, in exercise of its sovereignty, has voluntarily accepted.
AP1 (Applicant): I now turn to consider the domestic legislation and to identify its key flaws.
AP1 (Applicant): I shall focus on convention breaches arising from the bulk interception, storage, and searching of data by the United Kingdom.
AP1 (Applicant): And Miss Mountfield will consider the question of the United Kingdom's sharing of data intercepted by foreign states, as well as the questions of victim status and the exhaustion of domestic remedies.
AP1 (Applicant): As the court knows, section 1 of RIPA prohibits the interception of the contents of communications in the course of their transmission, save where the interception is authorized by other provisions of the act, which include a warrant under section 5 of RIPA.
AP1 (Applicant): Such a warrant requires no independent prior authorization by a judge or any other body.
AP1 (Applicant): The sole authority to issue the warrant rests with the Secretary of State, who is, of course, an integral part of the executive and the government minister responsible for the agencies.
AP1 (Applicant): The permissible contents of a warrant issued by the Secretary of State are set out at section 8 of RIPA.
AP1 (Applicant): Sections 8.1 and 8.2 appear to limit the circumstances
AP1 (Applicant): in which a warrant may be issued.
AP1 (Applicant): Under those provisions, a warrant must name or describe one person or a single set of premises.
AP1 (Applicant): Schedules must be provided, setting out the addresses, phone numbers, the apparatus, in other words, the individual computers, or other factors to be used to identify the communications that may be intercepted.
AP1 (Applicant): The aim of these provisions is to ensure that the secret authorization by the executive of the interception of the contents of someone's communications is narrowly tailored to an individual suspect.
AP1 (Applicant): The general searching of communications in the hope that something relevant might be discovered is prohibited.
AP1 (Applicant): However, section 8.4 sets out an exception
AP1 (Applicant): where the safeguards laid down by sections 8.1 and 2
AP1 (Applicant): do not apply at all.
AP1 (Applicant): And it is the scope of that exception which is the foundation of our case.
AP1 (Applicant): Under section 8.4, general warrants
AP1 (Applicant): may be issued without any tailoring to individuals where the Secretary of State has issued a certificate certifying that she considers that the examination of material described in the warrant is necessary in the interest of national security, the prevention or detection of serious crime, or safeguarding the economic well-being of the United Kingdom.
AP1 (Applicant): And where the conduct authorized by the warrant consists first of the interception of external communications.
AP1 (Applicant): And secondly, other conduct identified under section 5.6.
AP1 (Applicant): Crucially, section 5.6 permits the interception
AP1 (Applicant): of communications not identified by the warrant, which is necessary in order to do what the warrant expressly authorizes.
AP1 (Applicant): Although the section 8.4 power is purportedly
AP1 (Applicant): limited to external communications, that limitation is now effectively meaningless.
AP1 (Applicant): Most communications by phone or by internet, even between two individuals who are both in the United Kingdom, pass outside the United Kingdom in the course of their transmission.
AP1 (Applicant): Even if those communications between two individuals in the UK are not in themselves classified as external communications, they will be captured in the bulk collection of external communications because they will be part of the whole of the pipe that is being intercepted.
AP1 (Applicant): This ancillary form of collection is permitted by section 5.6.
AP1 (Applicant): That allows the whole communication link, the whole cable, to be intercepted, whether or not each individual communication in the cable is external.
AP1 (Applicant): The result is that a section 4 warrant can be used, and is used, to intercept a massive volume of communications, including communications between persons who are both in the United Kingdom.
AP1 (Applicant): It is also the case, and the government accepts this, that communications with a server outside the United Kingdom, including Google searches and Facebook posts, are classified as external communications.
AP1 (Applicant): So-called safeguards for these general certificated warrants under section 8.4 are provided under sections 15 and 16.
AP1 (Applicant): In particular, section 16.2.
AP1 (Applicant): That provision is far from clear, but what it seems to mean is that the contents of intercepted communications obtained under a section 8.4
AP1 (Applicant): warrant may not be read, looked at, or listened to, if the person is known to be in the United Kingdom.
AP1 (Applicant): So if a person is or might be outside the UK, the contents of their communications may be examined without any individual warrant or authorization whatsoever.
AP1 (Applicant): Those safeguards apply only to the content of communications.
AP1 (Applicant): Section 16 provides no meaningful safeguard for the storing, searching, and use of communications data, because under section 20, data of that kind does not fall within the definition of intercepted material to which the section 16 safeguards apply.
AP1 (Applicant): We say this is a fatal flaw in the legislative regime.
AP1 (Applicant): Communications data, unlike content, can be used for purposes outside the scope of the purposes for which the original collection was certified by the Secretary of State and may be examined by a state official whether a person is within or outside the UK.
AP1 (Applicant): So for example, if the collection of a pipe was justified on national security grounds, communications data relating to communications between people in the UK could be examined for other reasons, including serious crime or economic well-being.
AP1 (Applicant): The effect is that GCHQ, under the UK legal regime, can keep, search, and use all the communications data they obtain from intercepting an entire communications link, even when that data belongs to people in the UK who are of no legitimate intelligence interest, and even if they relate to communications between two people both inside the UK.
AP1 (Applicant): We say that the use by the UK of Section 8.4 bulk warrants
AP1 (Applicant): involves multiple breaches of Article 8 at every stage of the operation on interception, on storage, on scanning and profiling, and on searching and use of the data.
AP1 (Applicant): And interference with privacy rights must be in accordance with law.
AP1 (Applicant): To satisfy that requirement, it must have a basis in domestic law.
AP1 (Applicant): It must be foreseeable in its scope and application.
AP1 (Applicant): It must include adequate safeguards to protect against arbitrary interference by the state.
AP1 (Applicant): We say this regime fails the test of foreseeability.
AP1 (Applicant): The manner in which these very broad statutory powers is exercised remains largely secret.
AP1 (Applicant): The IPT has concluded that it's sufficient for the foreseeability criterion to be met if there's a secret policy, a secret policy which regulates its operation.
AP1 (Applicant): These are the policies the IPT refers to as below the waterline policies.
AP1 (Applicant): We're told there are such policies in this case, though of course we have not seen them.
AP1 (Applicant): The use of a metaphor in place of legal analysis is often a warning sign.
AP1 (Applicant): And so it is in this case.
AP1 (Applicant): A policy which is secret cannot by definition meet the convention requirement that the legal parameters by which the state may interfere with a fundamental right should be accessible to individuals and foreseeable to them so that they can regulate their conduct accordingly.