TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): which he made is that the Commissioner had carried out a limited sample review of some selectors. Now, he says, therefore, that the first section were wrong, that no sample analysis
AP1 (Applicant): had taken place. The applicants are awaiting to see any documents evidencing that. All
AP1 (Applicant): the Commissioner has said in his published reports is that he has considered not individual selectors, but has examined the operation of the system in general. The government still
AP1 (Applicant): declined to give even a general number of selectors and searches. Is it thousands, hundreds
AP1 (Applicant): of thousands, millions? And in those circumstances where it must be assumed that the scale of
AP1 (Applicant): the collection is very large and broad, there is an inadequate safeguard if we're simply relying on a single retired judge conducting a modest sample analysis, if that, without any system for prior consideration and approval of the selectors.
AP1 (Applicant): The final point that I wanted to mention was Sir James's submissions about the British Island Safeguard. The way that he explained and described the British Island Safeguard
AP1 (Applicant): was very interesting. It was presented for the first time, I think, in any of the proceedings
AP1 (Applicant): before this Court or in the Investigatory Powers Tribunal as being somehow optional or discretionary. That's wrong for the reasons which the first section explained, in particular
AP1 (Applicant): at paragraph 343 of the first section's judgement. The British Island Safeguard, which when you're
AP1 (Applicant): looking at content, requires an individual approval from the Secretary of State, is the only thing which prevents the intelligence services getting hold of content via a bulk warrant that they ought to be going and getting via an individual and targeted warrant under section 8, and therefore circumventing this Court's decision and the safeguards relied on by this Court in Kennedy and the United Kingdom.
AP1 (Applicant): What is interesting is why the UK Government is forced to resort to that position. And
AP1 (Applicant): our submission is that they've done so because the truth is that RIPA, unlike, for example, previous cases before this Court, such as VEBA, is not really a foreign intelligence power anymore. In reality, it has been transformed by technological change into a domestic surveillance
AP1 (Applicant): power. That used to be, the British Island Safeguard used to be, presented as a critical
AP1 (Applicant): safeguard for people in the UK to protect them. That is no longer in practice the case.
AP1 (Applicant): And the reason why it is now presented as being an optional safeguard is because of the reality of the technological change which the applicants rely on.
AP1 (Applicant): Ms Mountfield has one further point relating to intelligence sharing, if we may.
AP2 (Applicant): Judge Pinto de Albuquerque asked whether, in the case of receipt of intelligence from a non-Council of Europe state, there was a requirement that the receiving state should comply with Article 8 standards concerning data gathering, i.e. ensuring that the non-Council of Europe state
AP2 (Applicant): complied with equivalent standards.
AP2 (Applicant): As a matter of current UK law, the answer is no.
AP2 (Applicant): As a matter of European Convention law and proper interpretation of Article 8, we submit that the answer should be yes.
AP2 (Applicant): The UK state responsibility is engaged because that data is, or communications data, is received and used in the United Kingdom.
AP2 (Applicant): And just in the same way as if the United Kingdom were to receive and use in a trial evidence based on torture abroad, that would engage the UK state responsibility under Article 6.
AP2 (Applicant): Just as if the UK were to render someone to a country where it ought to know that they may be subjected to torture or the death penalty, that would engage the UK's state responsibility.
AP2 (Applicant): So in the same way, if the UK intelligence services are going to receive and use data within the UK for UK state purposes, they must ensure that Council of Europe standards are met.
AP2 (Applicant): May I also just comment on Judge Groszko's question to Sir James, whether in the case of intelligence sharing, as a matter of policy, a warrant would generally, though not always, be required.
AP2 (Applicant): Would that be required to name an individual?
AP2 (Applicant): Well, firstly, it is only as a matter of policy that a warrant would be required at all, not as a matter of law, and only as a matter of general policy it can be waived.
AP2 (Applicant): Secondly, if that warrant were required, it would be a Section 8-4 warrant, so it would not name an individual target.
AP2 (Applicant): Thirdly, if the government chose to comply with its usual practice, then the safeguards under Section 16 of REPA would apply to the examination of content obtained from that intelligence sharing operation insofar as it related to a person in the British Islands, but it would not apply to communications data at all, and it would not apply if the content being examined was, for example, concerning a German resident.
AP2 (Applicant): I do note that Sir James did not say, or in fact say anything at all, on my submissions that even as a matter of policy, no warrant and no safeguards whatsoever are required if the United Kingdom security services receive or use unsolicited third-country intercept material.
GR1 (Government): I'm going to try and take the questions in order and then I've got two or three brief points in reply at the very end if I may.
GR1 (Government): Judge Spano first of all, who asked as his first question whether there was a written record by analysts as to the choice of selectors and whether access to content type was done purely by reference to a drop box or menu system, citing I think the evidence of Eric King.
GR1 (Government): Our answer to that is that it is the case that the system does have a drop box containing a menu.
GR1 (Government): It is not simply replicative of the statutory purposes, in other words it doesn't just say national security, it goes into more detail than that.
GR1 (Government): But that is the starting point.
GR1 (Government): It isn't just a drop box, what the individual analyst who is typing in the query has to do is by way of free text to explain, he's got to select one of the items off the drop box and then he's got to explain why it's necessary and proportionate to make the search.
GR1 (Government): So the answer I think to the question is that they're right but only in part and the only in part bit is quite important because it goes to the detail of the explanation of the justification for making the search.
GR1 (Government): And can I refer you in that respect to paragraph 7.16 of the code, 2016 code, which is behind
GR1 (Government): tab 33 in your core bundle.
GR1 (Government): Judge Bono's second question related to EU law and in effect to the application or otherwise of the EU line of authority, digital rights Ireland and so on, the Watson cases in Luxembourg, paragraph 119 to 20 of TELE 2.
GR1 (Government): And in particular the transposition from EU law to here is really the nub of this question if I've understood it correctly, of the prior judicial or administrative or independent authorisation.
GR1 (Government): And my answer to that is that so far as the EU law position is concerned, our submission is that the Watson DRI requirements of that kind, in other words prior judicial authorisation in particular, do not apply in the national security context with which you are currently concerned and they do not apply in that context because that context falls outside the scope of EU law and is the subject of a specific provision, excluding from the scope of EU law national security I summarise, in article 4 sub 2 of the TEU, the Treaty of European Union.
GR1 (Government): That issue is controversial as I fully acknowledge and it is the subject of a current reference to the CJU from the privacy case before the IPT, so the IPT referred a series of questions to the CJU.
GR1 (Government): The reference if you want it is C623-17.
GR1 (Government): But that's our first answer.
GR1 (Government): The second and alternative answer is that even if EU law does apply, the submission is that those Watson DRI safeguards are not appropriate in any event, even if it's within the scope of EU law, when you are considering a national security context.
GR1 (Government): So that's an argument about substantive transposition rather than an exclusion at the gates through article 4 sub 2, but that's the second argument.
GR1 (Government): And the third argument you will be delighted to hear is that even if all of that is wrong, the safeguards that should be applied are the ECHR safeguards because of the nature and structure in particular of the Charter.
GR1 (Government): So that I hope provides an answer to Judge Spano's questions.
GR1 (Government): Judge Gotano then, external and internal was the real thrust of the first of these questions and the question, put if I may say so in slightly contentious terms, was whether or not the position of the government was that lesser protection should be afforded to internal rather than external.
GR1 (Government): And my answer to that is that that is not the position of the government.
GR1 (Government): The protections which I outlined in my speech apply to external and to internal communications.
GR1 (Government): And the British Islands protection, if this was the thrust of the thinking, the British Islands protection provisions are based on the location or anticipated location of the individual, i.e. the physical location of the individual, and not the nature of the
GR1 (Government): communications.
GR1 (Government): So in other words, the application of the British Islands safeguards does not turn upon the precise nature of the communication.
GR1 (Government): It turns on the location of the individual.
GR1 (Government): And the reason for the various distinctions that are drawn in that respect in general terms in the Act are because there are a suite of powers that are available to the government to access, as it were, targeted investigatory powers in relation to those who lie physically within the jurisdiction that are simply not available to them in relation to those who lie outside the jurisdiction.
GR1 (Government): That is why in a broad sense the legislation is structured as it is with its focus on external communications, because this is principally about that.
GR1 (Government): But it is not and has never been exclusively about external communications.
GR1 (Government): It controls the range of external and internal.
GR1 (Government): The second question that Judge Gaetano asked related to the nature and impact of the statutory purpose, which is the economic well-being of the nation, as you put it in your question.
GR1 (Government): How is it defined and interpreted in practice?
GR1 (Government): Mr Jaffe has helpfully pointed out already that economic well-being as a concept was amended by the Data Retention and Investigatory Powers Act 2014 so that it is now specifically linked to national security.
GR1 (Government): So the precise phraseology reads, for the purpose, in circumstances appearing to the Secretary of State to be relevant to the interests of national security of safeguarding the economic well-being.
GR1 (Government): So there is a direct relation there.
GR1 (Government): It is not just any old economic well-being.
GR1 (Government): You will also have noted from my reading out of that, this is the economic well-being, in brackets, related to national security, of the United Kingdom.
GR1 (Government): So there is a macro element to that.
GR1 (Government): This is not just any old thing to do with economics or economic espionage.
GR1 (Government): This is something which directly affects the economic infrastructure on a macro level of the United Kingdom.
GR1 (Government): So that is how the concept works in law and in practice.
GR1 (Government): The third question that Judge Gaetano asked is, what is the rationale for the introduction in 2016 and in the 2016 Act of notification of those who are under surveillance or in relation to whom this regime applies where there is serious error?
GR1 (Government): I do not want to get sucked into that.
GR1 (Government): Mr Jaffe and I had a case about two weeks ago in which lots of challenges were brought in the domestic courts to the 2016 Act.
GR1 (Government): This was one of the areas we examined and argued about.
GR1 (Government): If you wanted to chase it down, you need to appreciate that under the 2016 Act there is a narrow range of circumstances in which that provision will apply.
GR1 (Government): It applies to serious error as defined in section 231 of the 2016 Act.
GR1 (Government): The point to bear in mind in relation to the way in which that part of that new regime is set up is that it includes a requirement for the Commissioner to consider not merely whether there has been serious error as defined in the Act, but also whether it would or could be in the public interest, including in particular on national security grounds, to notify the individual at all.
GR1 (Government): So that if notifying the individual would in fact create national security difficulties, then the Commissioner has a judgment call to make around whether or not notification should take place.
GR1 (Government): My learning from Mr Jaffe, again, threw out, as he did in the case we were arguing a couple of weeks back, the idea that under those provisions it says that a breach of the Human Rights Act will not of itself render an error serious.
GR1 (Government): He is right about that, but the words that you need mentally to underline are of itself.
GR1 (Government): The judgment call as to whether or not the error is serious or not is a judgment call that is to be made by the independent Commissioner under the 2016 Act.
GR1 (Government): It is perhaps not surprising that it says of itself, because there will be some breaches of human rights that are a very great deal more serious and relevant than others.
GR1 (Government): So that is the way that that part of the regime works.
GR1 (Government): I anticipate, however, that the sting of this question, if I can put it that way, from Judge Gaetano was, well, why haven't you got something similar?
GR1 (Government): Why didn't you have something similar under RIPA?
GR1 (Government): And my substantive answer to that sting, if I've got the sting right, is that the Commissioner does have a power to react in circumstances where he considers that there has been error, serious or otherwise, by the intelligence services when administering or dealing with or operating under the RIPA regime.
GR1 (Government): And the principal tool which he has at his disposal is the requirement to report to the Prime Minister, and those reports, as you've seen from the bundle, there are a series of reports that are published, and the Commissioner will have to decide whether to make a report to the Prime Minister to draw this error to his attention in a report, and then he will have to decide, as he has done year on year when this regime has been operating, then he will have to decide whether, and if so, to what extent it's possible to publish that error.
GR1 (Government): So if that error doesn't create a security sensitivity drama, that error will be put in the public domain as well.
GR1 (Government): So that is a substantive answer under the RIPA regime.
GR1 (Government): It's a different regime, doesn't have the specific power, but in substance there is that protection.
GR1 (Government): Can I turn then to Judge Iker's questions, and the first one related to, I'm going to be taking them slightly out of order, but forgive me if I am, the first one related to the Human Rights Watch judgment of the IPT, which Mr Jaffe said had tightened, as he put it, access to the IPT in 2016.
GR1 (Government): And the only thing I wish to say about that, or perhaps two things about that, first of all, is that we respectfully agree with the extensive and cogent, if I may respectfully say so, analysis of the first section, when they considered the Article 35 set of issues that arose, had there been a failure to exhaust domestic remedies, in that part of their judgment they considered in detail whether or not the IPT provided an effective remedy that had in principle to be exhausted.
GR1 (Government): The principal issue that arose before them was whether or not the IPT provided not merely a place for individual complaints to be determined, but also a place in which compatibility of the regime, more general arguments, could be determined, and the answer that they gave to both of those was yes, but in the circumstances there are exceptional reasons for not applying that to close out some of these applicants.
GR1 (Government): But the second thing I would say about the Human Rights Watch judgment is that it is to be noted, if ever you choose to go back to it, that all that the IPT was doing in that 2016 judgment was to apply this court's case law, in particular about the concept of victim, as set out in Zakharov.
GR1 (Government): They were doing no more and no less than that, as you see from the face of the judgment.
GR1 (Government): Judge Icker's second question related to within or without the jurisdiction, and we have taken, as you have seen, a tolerably pragmatic view about that set of issues, not least because at least some of these applicants are plainly within the jurisdiction.
GR1 (Government): So there was no escaping the defence of this regime before this court for that reason alone.
GR1 (Government): But of course we recognise, and there isn't time here to go into the detail of it, we recognise and accept that the concept of within the jurisdiction, foundational as it is, is a thoroughly important controlling principle governing the access to this court.
GR1 (Government): And there are issues around whether or not people who are located abroad, foreign companies and so on, can indeed bring these sorts of challenges.
GR1 (Government): You will have seen in your reading, no doubt, that at least one of these IPT judgments, I think it was the Green Net judgment, left open a question of that description in relation to another part of the regime.
GR1 (Government): But I say no more about that than to acknowledge the importance of that concept.
GR1 (Government): Likewise in relation to corporate bodies and the distinction in relation to privacy rights they do or don't have, I think we are agreed in relation to that, they do not have a right to a private life in the same sense that an individual does.
GR1 (Government): We're all agreed about that.
GR1 (Government): They do have a right to correspondence and we don't say that any different set of principles applies under Article 8 as a result of that.
GR1 (Government): Indeed you will have seen that RIPA itself defines a person as including a legal person.
GR1 (Government): So that is the position in relation to RIPA.
GR1 (Government): Judge Groseff then, if I can turn to him, asked the question whether or not reasonable suspicion wasn't more likely to be linked to crime and wasn't bulk about intelligence gathering.
GR1 (Government): The introduction of that sort of concept work in the bulk intelligence gathering regime of this kind.
GR1 (Government): The short answer to that is it wouldn't for the reasons I gave in my opening address.
GR1 (Government): The second question related to the Secretary of State's warrant and the question whether or not it does or it does not specify particular bearers when considering which bearers to intersect at the warranty stage.
GR1 (Government): The answer to that question I think is that the warrant does not specify individual bearers and it does not do so because there are serious impracticalities and difficulties, or there would be if that were to be a requirement.
GR1 (Government): But what it does require is a proper description of what the interception is going to involve and that will inevitably involve a description of the sorts of bearers and how they're going to approach that.
GR1 (Government): And if you want the flesh on the bone of that basic submission, that basic protection inherent in the regime, can I refer you again, it's tab 33 to the 2016 code, paragraphs 6.7, 6.10
GR1 (Government): and 6.18 which make that clear.
GR1 (Government): So no individual identification of particular bearers for practical reasons, but a requirement properly to describe how they're going to go about that exercise.
GR1 (Government): The third question asked was about the intelligence sharing regime and whether or not the warrant doesn't specify individuals.
GR1 (Government): Would that be in the certificate?
GR1 (Government): And the position there is that it's exactly the same as it would be under the Section 8.4 regime.
GR1 (Government): It would be if they were in the British Islands, not if they're not.
GR1 (Government): Judge Pavley then, data retention periods was the first question, up to two years or several months.
GR1 (Government): I probably haven't got time to go to delve into the detail of that.
GR1 (Government): The up to two years period that you've seen is a genuine up to period.
GR1 (Government): Can I give you two references which contain the detail of how the data retention periods work?
GR1 (Government): One is into the code at PARA 7.9, which contains a description of how it all works.
GR1 (Government): And the second is into our observations before the Grand Chamber in relation to content and the data retention periods in relation to content.
GR1 (Government): See PARAs 39 and 40 of our observations.
GR1 (Government): And in relation to related communications data retention periods, see paragraph 45 of those observations.
GR1 (Government): That retention period question led into the second of Judge Pavley's questions, which was the practice of the agencies, and do they retain for more than mere days a significant or large quantity of data, and so on.
GR1 (Government): Well I have described in my opening remarks the process of filtering that occurs in order to try to get the data that has been intercepted filtered down, as it were.
GR1 (Government): And I've also described how the process then of selecting content in RCD works.
GR1 (Government): So far as content is concerned, focusing directly on the question that's been asked, there will be a pretty short retention period for most of it, by which I mean days.
GR1 (Government): And by the time it's gone through the filtering process, it will be nothing like millions, if I can put it at that level of generality.
GR1 (Government): Communications data are retained for a longer period, for the reasons that I indicated in my speech.
GR1 (Government): But that would be most likely to be a period of several months or thereabouts, was I think the figure that I gave.
GR1 (Government): But again to come to the sting of the question, if the sting of the question is, haven't we here got a regime in which a very large quantity of data is kept for a significant period, the answer to that question is, think about the nature of the regime.
GR1 (Government): The whole point of a bulk data regime, with its ability to enable the state to protect its citizens by discovering threats and by using bulk data to that, the whole point of that only works if there is bulk data.
GR1 (Government): That's how the effectiveness in terms of protection of the citizens works.
GR1 (Government): So to the extent that the sting of the question is, have you got lots of data even at the end of your filtering process, the answer to that question is yes, and a jolly good thing too, we submit.
GR1 (Government): The third of his questions, which was focused on the ECHR requirements and whether the bulk surveillance was in truth any really different from targeted surveillance, and that I think was also the subject, or close to the subject, of Judge Pinto de Albuquerque's first question, so if I can take them together.