TrustHLT/LaCour huggingface dataset:
Angelika Nußberger (JudgeP): The three applications were lodged with the court under Article 34 of the Convention by Big Brother Watch and Others, Bureau of Investigative Journalism and Alice Ross, and 10 human rights organizations on 4th September, 2013, 11th September, 2014, and 20th May, 2015, respectively.
Angelika Nußberger (JudgeP): The applications were originally allocated to the fourth section of the court, pursuant to Rule 52, paragraph 1 of the rules of court, before being transferred to the first section, following a recomposition of the sections.
Angelika Nußberger (JudgeP): The applications were communicated to the government on 7th January, 2014, 5th January, 2015, and 24th November, 2015, respectively.
Angelika Nußberger (JudgeP): The chamber joined the three applications, and a public hearing was held on 7th of November, 2017.
Angelika Nußberger (JudgeP): The chamber delivered its judgment on 13th of September, 2018.
Angelika Nußberger (JudgeP): On 11th of December and 12th of December, 2018, respectively, the applicants in Big Brother Watch and Others and Bureau of Investigative Journalism and Alice Ross requested the case be referred to the Grand Chamber in accordance with Article 43 of the Convention.
Angelika Nußberger (JudgeP): And the panel of the Grand Chamber accepted the request on 4th of February, 2019.
Angelika Nußberger (JudgeP): On different dates, between 9th of September, 2015, and 3rd of May, 2019, the president of the Grand Chamber granted leave to the governments of France, the Netherlands, and Norway to submit written comments as third parties by virtue of Rule 44, paragraph 3 of the Rules of Court, and also to the following 15 organizations or individuals.
Angelika Nußberger (JudgeP): Access Now, Bureau Brandeis, the Center for Democracy and Technology, the Equality and Human Rights Commission, and the European Network of National Human Rights Institutions, the Helsinki Foundation for Human Rights, Human Rights Watch, the International Commission of Jurists, the Open Society Justice Initiative, the Law Society of England and Wales, Ot Van Daalen Project More, and EBRI and others, the National Union of Journalists, the Media Lawyers Association, Article 19, the Electronic Privacy Information Center, and Mr. David Kaye, United Nations Special Rapporteur
Angelika Nußberger (JudgeP): on the Promotion of the Right to Freedom of Opinion and Expression.
Angelika Nußberger (JudgeP): The respondent government are represented by the agent Mr.
Angelika Nußberger (JudgeP): Chanaka Wickremasinghe and are assisted by Sir James Eadie QC counsel and by Mr. Julian Milford, Mr. Robert Yardley,
Angelika Nußberger (JudgeP): Mrs. Louise Morgan, Mrs. Hugh Mawby, Mr. Thomas Rutherford,
Angelika Nußberger (JudgeP): and Mr. James Keay-Bright, Advisors.
Angelika Nußberger (JudgeP): The applicants are represented by Mr. Ben Jaffey QC
Angelika Nußberger (JudgeP): and Mrs. Helen Mountfield QC counsel for all the applicants
Angelika Nußberger (JudgeP): and are assisted by Mr. Ravi Mehta and Mr. Daniel
Angelika Nußberger (JudgeP): Carey for Big Brother Watch and others, Mr. Connor Mccarthy
Angelika Nußberger (JudgeP): and Mrs. Rosa Curling for Bureau of Investigative Journalism
Angelika Nußberger (JudgeP): and Alice Ross, and Mr. David Heaton and Mrs. Gayatri
Angelika Nußberger (JudgeP): Sarathy for the 10 Human Rights Organizations.
Angelika Nußberger (JudgeP): Some of the applicants are also present.
Angelika Nußberger (JudgeP): I welcome the representatives and applicants in the name of the court.
Angelika Nußberger (JudgeP): I also welcome the following groups who are on study visit to the court, judges from the Supreme Court of Montenegro, judges and prosecutors from the European Judicial Training Network, and Ukrainian judges and leaders of the National School of Judges.
Angelika Nußberger (JudgeP): Having consulted the agent of the government and the representatives of the applicants, I have determined the order of addresses as follows.
Angelika Nußberger (JudgeP): Mr. Jaffey will speak first for the applicants,
Angelika Nußberger (JudgeP): followed by Mrs. Mountfield, and then Sir James Eadie
Angelika Nußberger (JudgeP): will speak for the government.
Angelika Nußberger (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Ukrainian and Montenegrin has been authorized for the benefit of the groups of judges from Ukraine and Montenegro who are attending this hearing.
Angelika Nußberger (JudgeP): This interpretation is not part of the official interpretation of the proceedings as organized by the court.
Angelika Nußberger (JudgeP): I call Mr. Jaffey and Mrs. Mountfield for the applicants.
AP1 (Applicant): Madam President, members of the court, this case provides the Grand Chamber with the opportunity to consider whether the court's jurisprudence on surveillance should be updated to reflect rapid developments in technology and in society.
AP1 (Applicant): The findings of breach of the convention that were made by the first section were, the applicants say, correct for the reasons the first section gave.
AP1 (Applicant): Indeed, most of them, but not all of them, are now conceded by the government of the United Kingdom, to be correct.
AP1 (Applicant): The applicant's case is that, in certain respects, Grand Chamber should consider going further.
AP1 (Applicant): I propose to make submissions on the bulk interception regime under section 8.4 of the UK legislation, RIPA,
AP1 (Applicant): and the article 10 case relating to journalism.
AP1 (Applicant): And Miss Mountfield QC will deal with the issue of intelligence sharing.
AP1 (Applicant): The background to these applications is that the Edward Snowden documents illuminated the true extent of bulk interception and sharing of mass intercept data by the United Kingdom and its intelligence sharing partners.
AP1 (Applicant): This activity in the United Kingdom is authorized by a small number of general warrants, which are authorized only by a politician, not by a judge.
AP1 (Applicant): In 2016, only 13 warrants were issued under section 8.4 of RIPA.
AP1 (Applicant): Those warrants do not list the bearers, which are the entire communications links to be intercepted, nor do they list the strong selectors, the names and email addresses, for example, which are used to search through the bulk data.
AP1 (Applicant): And the government of the United Kingdom has declined to say, in its written observations, in answer to a specific question from the court, the number of selectors that it applies to the bulk data.
AP1 (Applicant): The applicants infer that is because the number is very large, indeed.
AP1 (Applicant): GCHQ, the UK agency that carries out bulk interceptions, has a practice of keeping all of the communications data that comes into their building for up to two years.
AP1 (Applicant): That's what they told the Interception of Communications Commissioner in 2013.
AP1 (Applicant): And that's in the court's materials at CB2 at tab 40.
AP1 (Applicant): Of that communications data, and also of the content that they receive, the analysts at GCHQ then select the data that they want to see.
AP1 (Applicant): There is no system of independent prior approval before access to data is granted.
AP1 (Applicant): What the government says about that is that access to data can only be granted in respect of data that appears on an index.
AP1 (Applicant): But analysts may choose to add a selector, add a person's communications to the index, simply by adding that appropriate selector.
AP1 (Applicant): And it's worth comparing that with the scheme that this court considered in Liberty in the United Kingdom under the 1985 bulk interception legislation.
AP1 (Applicant): At paragraph 50 of the court's decision in that case, the court explained that a single official at GCHQ could not choose and add a selector for themselves.
AP1 (Applicant): That is no longer the case under RIPA.
AP1 (Applicant): Now, the government relies on four major safeguards in order to justify the convention compatibility of these arrangements.
AP1 (Applicant): The first is that warrants are targeted at external communications.
AP1 (Applicant): The applicants say that that safeguard has now lost any protective power as technology has developed.
AP1 (Applicant): The second safeguard that's relied on is the British Island safeguard, so-called, in section 16 of RIPA.
AP1 (Applicant): But that safeguard does not apply at all to communications data, as the first section found.
AP1 (Applicant): Thirdly, the possibility of review ex post by the commissioner is relied on.
AP1 (Applicant): But these cases, as I'll seek to explain, have shown the limits of that in practice.
AP1 (Applicant): And then finally, there is the Investigatory Powers Tribunal, the UK court with jurisdiction to hear complaints about surveillance issues.
AP1 (Applicant): But if a person does not know that they are likely to have been a victim, the reality is that they will not go to the Investigatory Powers Tribunal.
AP1 (Applicant): The government's case ultimately comes down to trust us, trust us in the context of very large databases of private material, most of which is about people of no legitimate intelligence interest.
AP1 (Applicant): Trust us, even though the reality is that large and secretive institutions will often, in practice, consider that things that they want to do and things that they can do are also things that it is necessary and proportionate for them to do.
AP1 (Applicant): The applicant's case is that trust alone is not enough to support a scheme which we say is lacking essential safeguards and permits interception and analysis of bulk data on a scale that we think is unprecedented in any democratic society.
AP1 (Applicant): And this case, of course, is not just hypothetical.
AP1 (Applicant): It has become clear that the communications of non-government organizations are of real intelligence interest.
AP1 (Applicant): Amnesty International and the Legal Resources Center's communications, two of the applicants before the court today, were unlawfully selected and examined, the UK tribunal found.
AP1 (Applicant): That, of course, does not mean that other of the applicants before the court were not intercepted.
AP1 (Applicant): It's just that on the tribunal's view, those interceptions were lawful.
AP1 (Applicant): And lawful interceptions are not disclosed.
AP1 (Applicant): So we make six submissions before the court.
AP1 (Applicant): The first will be that the world has dramatically changed since Weber and liberty in the United Kingdom were decided.
AP1 (Applicant): Secondly, I will address the continued value and importance of the right to privacy under the convention.
AP1 (Applicant): Thirdly, the proportionality of the RIPA regime.
AP1 (Applicant): Fourthly, the safeguards in RIPA, which the applicants say are not meaningful and effective any longer.
AP1 (Applicant): And in any event, they don't comply with the minimum requirements identified in Weber.
AP1 (Applicant): Fifthly, that changes in technology and how we communicate mean that this is the appropriate time for the court to develop additional enhanced safeguards.
AP1 (Applicant): And we propose three.
AP1 (Applicant): First, the prior judicial authorization of warrants, bearers, and searches.
AP1 (Applicant): Secondly, that there be objective evidence of reasonable suspicion.
AP1 (Applicant): And thirdly, a requirement to give notice to affected individuals where that's possible.
AP1 (Applicant): And finally, I'll deal with the special protections required by Article 10 for the protection of journalists and for similar activities carried on by NGOs.
AP1 (Applicant): So I can turn to deal with what's changed in the world.
AP1 (Applicant): The reality is that how we use technology has fundamentally changed.
AP1 (Applicant): Communications now take place not using fixed telephones, but mobile devices.
AP1 (Applicant): They've replaced our photo albums, our calendars, private diaries, notebooks, newspapers, TV, and books.
AP1 (Applicant): We store our data in the cloud using servers around the world.
AP1 (Applicant): A message or our data will pass through numerous countries before it reaches us or reaches its recipients.
AP1 (Applicant): Communications that would never previously have been collected by a foreign intelligence surveillance regime will now get swept up in the net.
AP1 (Applicant): And it will get swept up in the net, potentially, of multiple countries, because the court is asked to authorize a regime that could apply in any Council of Europe state.
AP1 (Applicant): So a communication may be intercepted not just once, but in every country that it passes through with a further intrusion each time.
AP1 (Applicant): Now, in those communications, we generate enormous volumes of communications data, which, as the first section identified, can be just as intrusive as content.
AP1 (Applicant): A phone communicates its location constantly to the telephone network.
AP1 (Applicant): Each email I send, each newspaper article I read, each photo or video I watch online will create communications data.
AP1 (Applicant): And so, as we've noted in our observations, the director of the US National Security Agency said recently, if you have enough metadata, you don't need the content.
AP1 (Applicant): And that's correct.
AP1 (Applicant): Yet, communications data has minimal protection under RIPA and is kept routinely for longer.
AP1 (Applicant): When older cases like Malone and the United Kingdom were decided by this court, communications data was simply a metering device that produced a list of the telephone numbers that had been called.
AP1 (Applicant): The world has changed substantially since then.
AP1 (Applicant): The data that's collected is highly sensitive, and it paints an intimate picture of our lives.
AP1 (Applicant): And of course, the government's ability to analyze and store data has exponentially increased.
AP1 (Applicant): Computing power has increased, and it can aggregate data from multiple sources to create profiles of individuals and to examine the behavior of very large groups of people, entire communities, or societies.
AP1 (Applicant): As one of the Snowden documents refers to, we now live in what the US NSA called the golden age of signals intelligence.
AP1 (Applicant): Now, the government accepts that the collection of large volumes of data is an interference under Article 8 of the Convention.
AP1 (Applicant): But the government's case is that that interference is a minor one.
AP1 (Applicant): The systematic collection of data on a government database is a very significant interference with privacy, even if the data is not read or reviewed.
AP1 (Applicant): And that reflects this court's consistent case law, most recently in the decision in Catt in the United Kingdom, where precisely that argument was made by the UK courts and by the government in this court, but rejected.
AP1 (Applicant): And this court cited in detail the dissenting judgment in the UK Supreme Court of Lord Toulson.
AP1 (Applicant): And he said correctly, one might question why it really matters if there's no risk of the police making inappropriate disclosure of the information to others.
AP1 (Applicant): And he answered, it matters, because in modern society, the state has very extensive powers of keeping records on its citizens.
AP1 (Applicant): If a citizen's activities are lawful, they should be free from the state keeping a record of them, unless, and then for only as long as, such a record really needs to be kept in the public interest.
AP1 (Applicant): So let's imagine for a moment a law that has superb safeguards, requiring each of us to deliver a list of everywhere we've been and all of the websites we've looked at on the internet each month to our local police station.
AP1 (Applicant): Now, such data would no doubt be very useful.
AP1 (Applicant): It would help fight crime.
AP1 (Applicant): You could have very strict controls on the review and examination of the data.
AP1 (Applicant): You might have a judicial warrant.
AP1 (Applicant): You might have a code of practice, judges carrying out audits, oversight, and so on.
AP1 (Applicant): But nonetheless, that collection of data would chill freedom of expression and risk gravely harming public life.
AP1 (Applicant): The collection of data in large databases by the government on a compulsory basis is not a minor interference with the right to privacy in the applicant's submission.
AP1 (Applicant): And that argument is stronger in relation to bulk intercept, because that is carried out in conditions of total secrecy.
AP1 (Applicant): And so people are less likely to know about it or be able to complain about it.
AP1 (Applicant): The applicant suggests that in these circumstances, we shouldn't be continuing to apply standards that have been developed in rather different factual circumstances.
AP1 (Applicant): The second submission that we make is about the value of privacy and also the threat that's faced by Council of Europe member states.
AP1 (Applicant): Council of Europe states face very serious security threats and a risk from serious crime.
AP1 (Applicant): And combating those threats requires concerted police and intelligence activity, including covert surveillance and interception.
AP1 (Applicant): But those operations must be conducted within the convention framework.
AP1 (Applicant): Surveillance risks undermining the core values of the free and democratic societies that terrorism and serious criminality also seek to undermine.
AP1 (Applicant): And privacy is valuable, because what it does is to enable the exercise of other rights.
AP1 (Applicant): It enables us to whistleblow on illegality, to participate in political debates.
AP1 (Applicant): It makes intimate relationships possible.
AP1 (Applicant): It enables us to consider developing our religious faith or discuss abandoning it.
AP1 (Applicant): Lord Anderson, who carried out a number of reviews for the United Kingdom government, wrote a number of reports.
AP1 (Applicant): And they're relied on by the government.
AP1 (Applicant): But he put this point very well.
AP1 (Applicant): He said in his report, A Question of Trust, which is at CB248, some people might find comfort in a world in which every transaction and movement could be recorded.
AP1 (Applicant): Crime fighting, security, safety, public health justifications are never hard to find.
AP1 (Applicant): The impact of such powers on the innocent could be mitigated by the usual apparatus of safeguards, regulators, and codes of practice.
AP1 (Applicant): But a country constructed on such a basis would surely be intolerable to many of its inhabitants.
AP1 (Applicant): A state that enjoyed all of these powers would be truly totalitarian, even if the authorities had the best interest of its people at heart.
AP1 (Applicant): So that leads me on to the issue of proportionality.
AP1 (Applicant): Given these changes in technology, the generalized monitoring permitted by RIPA of the population's communications is, we say now, disproportionate, applying the principles identified by this court in S and MARPA and the United Kingdom and MK and France, relating to DNA and fingerprints.
AP1 (Applicant): And the fact that it is now technologically possible for a state to retain private information about a large proportion of the population and that retaining that information may be useful does not automatically justify doing so.
AP1 (Applicant): Can does not mean should, especially where a state such as the United Kingdom is acting as a pioneer in the development of new technology.
AP1 (Applicant): The proper test is one of strict necessity, which is not met.
AP1 (Applicant): So in S and MARPA, it was possible to take, for example, DNA from every arrested person in the United Kingdom and store it.
AP1 (Applicant): That could then be used to identify criminals.
AP1 (Applicant): But it did not justify the intrusion into privacy of a person who was never convicted of an offense.
AP1 (Applicant): And one of the reasons for that is because it involves a fundamental change in how we view policing and intelligence operations in society, from targeting a suspect who has been identified to treating everyone as a potential suspect whose data must be stored, analyzed, and profiled.
AP1 (Applicant): And so we say this broad, untargeted regime is not a proportionate one.
AP1 (Applicant): The impact of modern bulk interception is simply too grave an interference to be left entirely to states' margins of appreciation.
AP1 (Applicant): Now, if the court concludes that the applicants are incorrect about that and that RIPA's bulk regime is within the margin of appreciation, then the grave risks that are posed by it do require particularly strict safeguards.
AP1 (Applicant): Now, the court's jurisprudence, including in, for example, VEBA, contains six minimum safeguards.
AP1 (Applicant): And they should be applied to both content and also to communications data.
AP1 (Applicant): And the applicants say that even those safeguards are not met in respect of the RIPA regime.
AP1 (Applicant): The court already knows there are two kinds of warrants that are possible under RIPA.
AP1 (Applicant): First of all, an individual warrant under Section 8.1.
AP1 (Applicant): Those kind of warrants must name a single person or a single set of premises.
AP1 (Applicant): Secondly, there is a bulk warrant under Section 8.4,
AP1 (Applicant): which allows an entire communications link to be intercepted.
AP1 (Applicant): Now, a bulk warrant permits the interception of external communications, where at least one end of the communication is outside the British Islands.
AP1 (Applicant): But also, it authorizes under Section 5.6
AP1 (Applicant): anything which is necessary to do what the warrant authorizes.
AP1 (Applicant): And that permits what the first section called bycatch of internal communications traveling over the same link.
AP1 (Applicant): Now, in Sweden, for example, there is a ban on such bycatch.
AP1 (Applicant): If it is collected, it must be immediately destroyed as soon as it's identified.
AP1 (Applicant): That's what the court said in Centrum for RAT visa at paragraphs 15 and 26.
AP1 (Applicant): There is no such provision under RIPA.
AP1 (Applicant): Now, this requirement that a communication be external used to be a meaningful safeguard, but no longer.
AP1 (Applicant): The architecture and operation of the modern internet means that data which is between two people communicating in the UK passes via servers and networks abroad.
AP1 (Applicant): And so it gets swept up as bycatch and can be exploited under Section 8.4.
AP1 (Applicant): The result is that a Section 8.4 warrant can be used,
AP1 (Applicant): and indeed is used, to intercept a large volume of internal communications.
AP1 (Applicant): It's notable that the United Kingdom has actually given a hint of the true scale of these operations in its observations to the Grand Chamber.
AP1 (Applicant): We are told at paragraph 146 of the United Kingdom's observations that communications data collected under Section 8.
AP1 (Applicant): 4 is used in respect of people who are known to be in the United Kingdom.
AP1 (Applicant): So an internal surveillance power several thousand times per week.
AP1 (Applicant): Bulk intercept was meant to be a foreign intelligence gathering power.
AP1 (Applicant): As a result of the development of the internet, it is no longer.
AP1 (Applicant): Now, the UK may only target the content of a person's communications in the UK with a special authorization from the Secretary of State, a Section 16.3 certificate.
AP1 (Applicant): And that prevents the circumvention of the requirement to get an individual warrant.
AP1 (Applicant): But that certificate is secret, and it's drafted in extremely broad terms.
AP1 (Applicant): It doesn't name individuals.
AP1 (Applicant): That's explained in the first section's judgment at paragraph 342.
AP1 (Applicant): And that is also the applicant's response to question 3 of the supplemental questions posed by the court.
AP1 (Applicant): Individuals are not named in the Section 8 certificate.
AP1 (Applicant): And those arrangements have a major loophole.