TrustHLT/LaCour huggingface dataset:
GR1 (Government): Madam President, members of the court, these applications raise issues of the utmost importance for the United Kingdom and, indeed, for other Council of Europe states.
GR1 (Government): And that is because these powers are ones that are essential for the protection of the lives and safety of the public.
GR1 (Government): That is increasingly the case in an environment where the internet is used widely for terrorism, cyber attacks, and other national security threats, and where terrorists and serious criminals are ever more sophisticated at communicating electronically in ways that enable them to evade detection.
GR1 (Government): The importance of the powers has been the subject of detailed and, in the United Kingdom, repeated consideration by a series of independent bodies in recent years.
GR1 (Government): And that is reflected in Lord Anderson's words in his bulk powers review, tab 50 in your core bundle, there is not any alternative, as he put it, or combination of alternatives sufficient to substitute for the bulk interception power.
GR1 (Government): He says it has, and again I quote, proven itself to be a vital utility across the range of operational areas, including counterterrorism in the United Kingdom and abroad, cyber defense, child sexual exploitation, and organized crime, and has played an important part in the prevention of bomb attacks.
GR1 (Government): The various suggested alternatives, he says, not only fall short of matching the results that can be achieved by using bulk interception, but as he put it, may also be slower, more expensive, more intrusive, and riskier to life.
GR1 (Government): And he gave a series of compelling examples of major threats that have only been averted by the use of the bulk interception power, and which in many cases would not have been discovered at all without the power.
GR1 (Government): Some of them we set out in our observations at paragraph 25.
GR1 (Government): They include the identification of mobile phones used by terrorists, leading to the disruption successfully of a terrorist plot in the final hours before it took place.
GR1 (Government): The identification and monitoring of an armed group that had seized hostages in Afghanistan, which led to the hostages' eventual rescue.
GR1 (Government): The identification of an airline worker with links to Al-Qaeda, who had offered to use his access to an airport to launch a terrorist attack from the United Kingdom.
GR1 (Government): And the analysis of bulk interception data to track men overseas who had used the World Wide Web to blackmail hundreds of children across the world.
GR1 (Government): All of those examples I emphasize are ones where bulk interception was critical to enabling the intelligence services to discover and address the threat.
GR1 (Government): I highlight three important features of the various independent analyses.
GR1 (Government): The first is the emphasis that they place on the use of bulk interception for the discovery of threats, rather than simply to follow known targets.
GR1 (Government): The Intelligence and Security Committee of the United Kingdom Parliament, in its 2015 report, tab 47 in your bundle, under the heading, why do the agencies intercept communications, said that they did so, quote, as a discovery or intelligence gathering tool.
GR1 (Government): And went on to explain, in these words, the agencies, they said, can use targeted interception only after they have discovered that a threat exists.
GR1 (Government): They require separate capabilities to uncover those threats in the first place, so that they can generate leads and obtain the information they need to then target the individuals.
GR1 (Government): The second important feature was highlighted by Lord Anderson, when he said that the alternatives to bulk interception were, quote, more intrusive into individuals' privacy rights.
GR1 (Government): And that's because it is possible to interrogate or search bulk intercepted material in a highly specific way to enable threats to be discovered that simply could not be discovered any other way, and so to restrict any other intrusion to the most minimal.
GR1 (Government): Bulk interception and analysis enables the search to be done to see if the haystack contains a needle, and to focus on discovering that needle and nothing else.
GR1 (Government): By contrast, even assuming targeted information gathering powers were available to collect the communications of an unknown individual posing a security threat, those powers would be likely to involve examination of a greater quantity of that individual's private information.
GR1 (Government): And in such cases, the use of targeted powers may well entail intrusion and intrusive monitoring of persons who it eventually transpires are not national security threats at all.
GR1 (Government): The third feature of the independent analyses is their recent provenance.
GR1 (Government): They have squarely addressed exactly the argument that has been made by the applicants in this case, that the world has changed because of technological developments.
GR1 (Government): And they have found in that new world that bulk powers, including bulk interception, are and remain central to protecting the public.
GR1 (Government): Indeed, the world changing point has emphasized and reinforced the pressing need for these powers.
GR1 (Government): Wrongdoers who use telecommunications services are much more security conscious, and take greater steps to cover their electronic traces.
GR1 (Government): As Lord Anderson again pointed out, this time in a question of trust, tab 48 in your bundle, the internet has also complicated and magnified security threats.
GR1 (Government): It allows an almost infinite variety of channels for worldwide communication, some of them highly secure to be used by criminals and terrorists.
GR1 (Government): It's also vastly increased the volume of digital communications through which the intelligence services must search to find a fraction of the information that they need.
GR1 (Government): And it's provided a new platform for some crimes, such as child sexual exploitation and fraud.
GR1 (Government): It's facilitated the spread of terrorist propaganda and indecent images.
GR1 (Government): It's created completely new opportunities for criminality, for instance, malware and cyber attacks.
GR1 (Government): Those changes we submit emphasize the need for bulk interception powers rather than the reverse.
GR1 (Government): So the need, we say, is clear and established and of the utmost seriousness.
GR1 (Government): And this court has rightly, we say, been sensitive to the concerns of states in this area, sensitive in particular because these sorts of powers directly touch the paradigm responsibility of the state for which it is democratically accountable to its population to protect its citizens from harm.
GR1 (Government): It is right and consistent with the scheme of supervision under the convention for contracting states to make the primary judgments about what powers are needed to do that effectively and subject to the minimum safeguards to decide how to balance the competing rights and interests in play, notably the protection of the citizen and the privacy of the citizen.
GR1 (Government): It's also to be recognized that there are various different ways in which such powers may be exercised and controlled in the various Council of Europe systems.
GR1 (Government): This is not a harmonized field.
GR1 (Government): For all of these reasons, the court has always recognized in this context a wide margin of appreciation available to states.
GR1 (Government): And I emphasize this margin of appreciation because it underpins what we submit is the correct approach in principle in a case like this.
GR1 (Government): The court, of course, retains its supervisory role and the court's jurisprudence has developed a series of principles governing the safeguards that are to be applied.
GR1 (Government): However, the margin reinforces and provides the basis for three important points.
GR1 (Government): The safeguards upon which the court has insisted in the different cases in this context that have come before it are in nature minimum safeguards.
GR1 (Government): The court has accepted that margin applies to the detailed safeguarding in a national regime of this kind.
GR1 (Government): And the court has not been prescriptive as to any particular feature of an adequate system so long as the minimum standards are met.
GR1 (Government): Secondly, those standards are themselves set or described as in effect principles, allowing different states to conform to them in different ways, recognizing the different systems that can exist compatibly with the convention and recognizing also that it is for contracting states ultimately to decide what is needed to protect its citizens and precisely how to ensure that the minimum standards are met.
GR1 (Government): And thirdly, when considering whether applying this approach to the safeguarding is adequate, the overarching and critical question is whether the safeguards are sufficient to protect against abuse.
GR1 (Government): And the court has been astute to ensure that it does not, in applying the minimum safeguards, undermine the ability of what the contracting state judges to be necessary to protect its citizens.
GR1 (Government): And all of those features are important here because if the applicant's case on interception and intelligence sharing is accepted, and I mean their case both on whether the powers can exist at all and also their case on safeguards, it would be profoundly damaging for the capabilities and work of the intelligence services.
GR1 (Government): Indeed, as the interventions by third-party states show, that damage would be deep across Council of Europe states more generally.
GR1 (Government): And that is particularly the case in relation to the applicant's suggestion that a bulk interception regime is now per se disproportionate and that new legal principles should be developed accordingly.
GR1 (Government): I turn then to address the true extent of any interference with Article 8 rights in this case.
GR1 (Government): And I start with this initial point about balancing.
GR1 (Government): The interests in play here, we submit, are not equal.
GR1 (Government): The right to life and the safety of the citizen is paramount.
GR1 (Government): The scales in the overall balance are therefore not evenly weighted.
GR1 (Government): Privacy is of course important and abuse must of course be prevented by proper safeguards, but the protection of the public is preeminent.
GR1 (Government): We submit that the true nature of the interference with Article 8 rights is grossly overstated by the applicants who make repeated and inaccurate claims of, quote, mass and indiscriminate surveillance.
GR1 (Government): The true factual position, as we've explained in our observations in more detail, is as follows.
GR1 (Government): First, in order to obtain any wanted communications at all, it is necessary to intercept the entire contents of a communications bearer.
GR1 (Government): Without bulk interception, it would simply not technically be possible to obtain any information from the bearer in the first place.
GR1 (Government): Secondly, only a limited selection of bearers can be accessed.
GR1 (Government): A Section 8.4 warrant is directed at obtaining external communications
GR1 (Government): meeting the descriptions in the Secretary of State's certificate.
GR1 (Government): Under the Code, the bearers chosen must be those most likely to carry such external communications, for instance, bearers carrying a high proportion of communications from northern Syria.
GR1 (Government): Thirdly, only a tiny proportion of communications so intercepted can be and are selected and retained for possible examination.
GR1 (Government): The great majority of the communications are filtered and discarded instantly because they're not of a type likely to be of intelligence interest at all.
GR1 (Government): Any remaining communications are subject to automated searches in near real time for simple or strong selectors, for instance, a terrorist's email address.
GR1 (Government): Communications from a much smaller number of bearers are kept for a period of a few days and subject to much more complex search terms, for instance, material combining the use of a particular language with emanation from a particular geographical region.
GR1 (Government): The communications that match those either simple or complex queries will be kept for possible examination.
GR1 (Government): All other remaining communications are deleted as soon as that process has taken place.
GR1 (Government): That's the process that has been referred to as selection for examination.
GR1 (Government): What remains then is an index of communications for possible searching and viewing by trained and vetted analysts.
GR1 (Government): And this last stage, therefore, involves the actual searching and examination of material.
GR1 (Government): It's against that background we submit that the first section was right to conclude that in this case any substantial interference with privacy rights occurs not when the data is first intercepted, but only if it is selected for possible examination.
GR1 (Government): This is not by the remotest stretch of the imagination analogous to the seizure of a person's letters or the making of lists, as the applicants assert.
GR1 (Government): That is not least because it's not possible to examine or make any use of the content of the communications held in the amorphous soup of data before the selection for examination process has been completed.
GR1 (Government): The interception can, of course, be both of content, the content of the communication, and the communications data, in other words, the details of the nature of the communication, the who, when, and where of communications.
GR1 (Government): The Section 8.4 regime divides interception material
GR1 (Government): into content and what is called related communications data, or RCD.
GR1 (Government): Of course, both are vital to identifying and ruling out threats.
GR1 (Government): At this stage, however, I simply note that the legislative judgment inherent in the UK scheme of safeguarding is that in general, and I emphasize in general, RCD is on no view as intrusive or personally sensitive as content.
GR1 (Government): No doubt there may be cases where communications data would be revealing of personal details, but in general, knowing, for example, an email address is not as sensitive as knowing what someone has said.
GR1 (Government): That view of sensitivity is shared by our oversight bodies.
GR1 (Government): For example, the Intelligence and Security Committee, again in its 2015 report, said, the statutory definition of communications data, the who, when, and where of a communication, is narrowly drawn, and therefore, while the volume of communications data available has made it possible to build a richer picture of an individual, this remains considerably less intrusive than content.
GR1 (Government): It's permissible in principle, and well within the margin we submit, for a contracting state to set up its system of safeguards recognizing this general but important distinction.
GR1 (Government): Two points of detail to be dealt with in relation to CD.
GR1 (Government): First, it has a specific and limited statutory definition in the Act.
GR1 (Government): Everything not covered by that definition must be treated as content.
GR1 (Government): And as a result, much of the information posited as communications data in the applicant's observations would in fact amount to content under the Section 8.4 regime.
GR1 (Government): For instance, a website address is CD, but the individual web pages that are visited are content.
GR1 (Government): So the applicant's contention that RCD enables the intelligence services to know, quote, what has been viewed on the web is simply wrong.
GR1 (Government): Secondly, the use of RCD is not merely vital to threat identification, it also enables investigations to be undertaken with the minimum degree of intrusiveness.
GR1 (Government): And that, we submit, is a virtue.
GR1 (Government): Against that backdrop, I turn to the safeguards in the Section 8.4 regime.
GR1 (Government): The overall submission is that those safeguards are powerful and multilayered.
GR1 (Government): In the submissions I'm going to make, I'm going to use the present tense, even though, as you know, there is now in the United Kingdom, in the 2016 Act, a new regime governing this area.
GR1 (Government): As the Court will have seen from the very detailed description of the regime in our observations and in the first section's judgment, those safeguards are built around the convention concepts of necessity and proportionality.
GR1 (Government): Those fundamental principles govern all aspects of information or data, from obtaining it in the first place, to examining it, to handling it, to storing it, to disclosing it, and finally to its retention and deletion.
GR1 (Government): The regime involves detailed controls through primary legislation, through published codes, through internal arrangements, much now published.
GR1 (Government): It involves a system of oversight by a specially appointed commissioner who's held high judicial office, here a former Lord Justice of Appeal.
GR1 (Government): And it involves easy access to an independent tribunal chaired by a high court judge, able to rule on specific complaints and the convention compatibility, more generally, of the regime.
GR1 (Government): And finally, it involves parliamentary oversight by the Intelligence and Security Committee.
GR1 (Government): At the outset, the regime has a requirement, backed in detail by the Code, for warrants to be obtained from the Secretary of State authorizing interception.
GR1 (Government): They are required to collect any data, including RCD.
GR1 (Government): The Secretary of State must be satisfied that the warrant is necessary and proportionate for the listed statutory purposes, national security, serious crime, and so on.
GR1 (Government): Applications must set out the background to the operation in question and explain why the warrant is necessary and proportionate for one or more of those purposes.
GR1 (Government): The Secretary of State must also certify that he considers examination of the intercepted material to be necessary for one or more of those statutory purposes.
GR1 (Government): The certificate limits the purposes for which content can be selected for examination to those set out in the certificate.
GR1 (Government): So at the very outset, the Secretary of State is required personally to consider the necessity and proportionality of using the Section 8-4 power to obtain and then to examine material.
GR1 (Government): Applications are subject to oversight by the Commissioner.
GR1 (Government): He scrutinizes a high proportion of the warrants issued.
GR1 (Government): These are not rolling warrants.
GR1 (Government): They've got to be regularly reviewed to ensure that they remain necessary and their renewal must be justified.
GR1 (Government): What then of selection, searching, and examination, which the Court has specifically asked about?
GR1 (Government): I start with content.
GR1 (Government): The Secretary of State has set the parameters in the warrant, as I indicated.
GR1 (Government): Any selectors then used in the selection for examination and all searches must then be necessary and proportionate.
GR1 (Government): That's the legal requirement under Section 15 of RIPA.
GR1 (Government): Selectors must be reviewed at least every three months where they relate to target discovery and every six months where they relate to known targets.
GR1 (Government): And those requirements are then backed by an effective oversight system.
GR1 (Government): It's an important feature of the system that analysts must create records justifying their decisions, both to task the system with particular selectors, the stage at which the index of communications is created for possible examination, and when they choose an item from the index actually to examine it.
GR1 (Government): Records have got to be created for each type of decision, explaining why it's necessary and proportionate for the purposes within the Secretary of State's certificate.
GR1 (Government): And those records must be open to internal audit and to external audit and questioning by the Commissioner.
GR1 (Government): The Commissioner has power to oversee all of those decisions on the basis of all of those records.
GR1 (Government): In practice, he has conducted sample reviews which have assessed the necessity and proportionality of the selectors used by reference to the Section 5.3 purposes.
GR1 (Government): And it's specifically to be noted in this respect that the First Section appears not to have appreciated, I'm sure it was our fault, that the Commissioner's jurisdiction has always allowed him to do this, and that by the time of his 2014 annual report, he'd specifically put in place systems and processes to make sure that that occurred.
GR1 (Government): So the concerns that appear to have had, that the First Section appear to have had, and indeed that appear to have been central to their Article 8 conclusions, were in fact groundless for the reasons that we point out in powers 52 to 59 of our observations.
GR1 (Government): Given the number of selectors and search terms, it would not realistically, of course, be possible for the Commissioner to examine more than a limited proportion of them.
GR1 (Government): But that doesn't diminish the power of his oversight as a safeguard.
GR1 (Government): They've got to create the records which will contain their reasoning on necessity and proportionality, and anyone who's operating the system will know that they will then potentially be subject to specific questioning on those very issues.
GR1 (Government): I turn then to RCD, to communications data.
GR1 (Government): Here, the critical point is that all the same safeguards apply to the selection for examination of RCD as apply to content, except for the constraint on the examination of communications of persons known to be within the British Islands.
GR1 (Government): Thus, the application of selectors to RCD must be justified as necessary and proportionate, a written record created setting out that justification, just as for content.
GR1 (Government): Just as for content, that record is subject to audit and review by the Commissioner, and he will conduct sample reviews examining the necessity and proportionality of the selectors' use.
GR1 (Government): They've got to be reviewed at exactly the same frequency in relation to RCD as they are in relation to content, and they can only continue to be used, those selectors, if they continue to be justified as necessary and proportionate.
GR1 (Government): So the basic and core safeguards apply, and that, we submit, is enough to protect the examination of RCD against abuse, the prime convention principle.
GR1 (Government): The so-called British Islands safeguard in section 16 of RIPA is not, we submit, necessary to ensure convention compatibility, because the fundamental safeguards I've indicated are already in place.
GR1 (Government): It's an additional national provision, if you will.
GR1 (Government): It requires a warrant from the Secretary of State to examine content if the person concerned is within the UK, and that doesn't apply to CD.
GR1 (Government): That distinction is a considered legislative distinction made by Parliament, and it reflects two things.
GR1 (Government): First, that the examination of CD is, in general, less intrusive, for all the reasons that I gave, than examination of content.
GR1 (Government): And secondly, 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, to apply to CD, as well as to content.
GR1 (Government): Firstly, in order to assess whether a person is within the British Isles in the first place, they need to use CD for that purpose.