RIPA and the ECHR’s “accordance with law” requirements

In assessing Liberty et al’s challenge to Tempora, the IPT also considered whether, apart from s.16, RIPA‘s 8(4) regime conforms to the Weber requirements established in the European Court of Human Rights’ jurisprudence for satisfying the “accordance with law” requirement of Article 8(2) of the ECHR.

The Weber specificity requirement

To hold that the Weber requirement of legal specification of the offenses and categories of people who might be subject to surveillance was met, the IPT found that the statutory purpose of protecting national security sufficiently restricted the issuance of 8(4) warrants. Reiterating the distinction between the initial collection and subsequent selection of communications for examination, the IPT further found that “[t]he absence of targeting at ‘Stage one’ is acceptable and inevitable” and that it “would be both risky and pointless” to require “search words to be included in an application for a warrant or in the warrant itself.” Id., para.116 (ii) and (v). In addition, the absence of a requirement of judicial pre-authorization of warrants did not prevent the Weber specificity requirement from being met because “approval by the highest level of government, namely by the Secretary of State” is required for the issuance of 8(4) warrants. As additional compensation for the absence of judicial pre-authorization, the IPT cited its own availability to examine complaints about unlawful surveillance and oversight by the Interception of Communications Commissioner (“the Commissioner”).

The Weber requirements for the treatment of intercepted communications and associated metadata

For surveillance to be in “accordance with law,” Weber also requires statutory limits on the duration of interception and statutory safeguards pertaining to the examination, usage, storage, disclosure and destruction of intercepted material. 15(1)-(3) of RIPA and the Interception of Communications Code of Practice (“the Code”) require the Secretary of State to ensure that “arrangements” are in place for such purposes. Under s.57(1)(d) of RIPA, the Commissioner is  obligated to review the adequacy of the “arrangements. Although the IPT also referred to the “robustly independent” oversight provided by the ISC, as with the Prism issue, the IPT decided that a closed hearing was needed to examine the secret “below the waterline” arrangements. Id., para.120, 121. “[W]e need to be satisfied that there are adequate arrangements in place to ensure compliance with the statutory framework and the Convention and to give the individual adequate protection against arbitrary interference, that they are sufficiently accessible, bearing in mind the requirements of national security, and that they are subject to oversight.” Id., para. 125.

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