PRIVACY INTERNATIONAL and (1) SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS (2) SECRETARY OF STATE FOR THE HOME DEPARTMENT (3) GOVERNMENT COMMUNICATIONS HEADQUARTERS (4) SECURITY SERVICE (5) SECRET INTELLIGENCE SERVICE

IPT/15/110/CH

Reported [2016] HRLR 21
This case concerns the acquisition and use by the intelligence services of:

  • Bulk Personal Datasets (BPD)
  • Bulk Communications Data (BCD)
The UK Intelligence services have used statutory powers to obtain BPD including data relating to large numbers of individuals, most of whom are unlikely to be of any intelligence interest (including data from telephone directories, passport databases and commercial databases) but which are of great utility by way of electronic search for information that can be of use for counter-intelligence or the detection of crime. This was revealed by the Intelligence and Security Committee of Parliament in March 2015. In addition it was revealed in November 2015 that Secretaries of State had been using the power to issue directions to communications providers under s94 of the Telecommunications Act 1984 in order to obtain and retain large quantities of communications data (BCD) for similar purposes in the interest of national security. The Claimant (Privacy International) contended that this obtaining and use of BCD pursuant to s94 is unlawful at English domestic law and contravenes both the ECHR and EU law, and that the obtaining/use of BPD is contrary to the ECHR and EU law.

Subject to the limited issues adjourned as below, the Tribunal HELD:
  1. That the obtaining of BCD pursuant to s 94 was not unlawful at domestic law, and antedated the statutory scheme under Ch. II of Pt I of RIPA 2000 and was not repealed by it, but was in any event preserved by the Communications Act 2003.
  2. That neither the obtaining of BPD nor of BCD complied with Article 8 of the ECHR prior to their avowal in March/November 2015, by virtue of their lack of foreseeability to the public and in relation to BCD, the lack of adequate oversight by the independent Commissioners.
  3. That following avowal of the position and publication of the relevant procedures, and changes to the oversight arrangements, the powers were, since March/November 2015 respectively, compatible with Article 8.
The Tribunal invited further submissions and adjourned to a later date consideration of:
  • The issue as to EU law
  • Consideration of the issue of proportionality
  • Transfer of data to third parties

Judgment dated : 17 Oct 16

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