The Liberty challenge to Prism

The parties agreed that RIPA only applies to the interception of communications by UK agencies. Hence, the Intelligence Services were not subject to the requirements of RIPA when they received information from the NSA’s Prism or upstream collection programs, even if the information included telecommunications sent or received within the UK. Accordingly, the issue was whether in the absence of RIPA’s legal constraints, the Intelligence Services’ sharing of information obtained by the NSA satisfied Article 8 of the ECHR’s requirement that any interference with privacy be in “accordance with the law.”

The IPT recognized that the “accordance with the law” requirement includes both that (i) executive discretion be constrained to prevent arbitrary interferences with privacy and (ii) the public be sufficiently notified of the governing rules so that interferences with privacy are foreseeable. Although the demands of national security reduce the strictness of the notification requirement, Article 8 of the ECHR nonetheless requires that “the nature of the rules … be clear and the ambit of them … be in the public domain so far as possible, an ‘adequate indication’ given … so that the existence of interference with privacy may in general terms be foreseeable.” Dec. 5 Judgment, para. 37 (ii) (citation omitted).

In arguing that the “accordance with the law” requirement was satisfied, the Intelligence Services invoked the requirements in the Security Service Act 1989 and Intelligence Services Act 1994 that the heads of MI5, MI6, and GCHQ respectively ensure that “arrangements” exist to prevent MI5, MI6, or GCHQ from obtaining information “except so far as necessary for the proper discharge of its functions.” Under these laws, the heads of the Intelligence Services are also obligated to ensure that “arrangements” exist to prevent the disclosure of information except for the purposes of criminal proceedings or the proper exercise of the Service’s functions. MI5 and MI6 may also disclose information for the purposes of “the prevention or detection of serious crime,” and MI6 may make disclosures “in the interest of national security.” Id. at para. 18 (ii), (v), and (viii).

The need for a closed hearing arose because the Intelligence Services claimed that national security precluded any disclosure of the arrangements that their heads had established for obtaining, disclosing, and safeguarding data. According to the Respondents, the “accordance with the law” requirement of the ECHR could be found to be satisfied on the basis of testimony by Mr. Charles Farr, the Director-General of the Office for Security and Counter Terrorism at the Home Office, that the requisite arrangements existed. In addition, the IPT could rely on the oversight of the Intelligence Services’ operations by the ISC and the Interception of Communications Commissioner (“the Commissioner”) to find that the “accordance with the law” requirement was satisfied. In particular, the Commissioner and ISC had both found that the Intelligence Agencies did not circumvent UK law by obtaining information from Prism. (See A(1) above for a discussion of the ISC’s finding)

The IPT refused to accept the Respondents’ position, claiming that it had the advantage over the ISC and Commissioner of being empowered to conduct closed hearings on sensitive and confidential matters and gain “access to all sensitive information.” Hence, the IPT held a one-day closed hearing, at which the Claimants were not represented, to determine “whether the arrangements (a) do indeed exist as asserted by Mr. Farr, [and] (b) are adequate to do the job of giving the individual “adequate protection against arbitrary interference.” Dec. 5 Judgment, para. 46 (iii). In addition, the IPT sought to determine whether, consistently with the demands of national security and the notification requirement of Article 8 of the ECHR, any details of the arrangements should be publicly disclosed.

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