using increasingly sophisticated methods to protect their communications. In a
Report published on 19th August 2016 (the "Bulk Powers Review") David
Anderson QC, the Independent Reviewer of Terrorism Legislation, concluded
that there is a proven operational case for the use of the powers to obtain and
use BCD and BPD, that those powers are used across the range of activities of
the SIA, from cyber-security, counter-espionage and counter-terrorism to child
sexual abuse and organised crime, and that such powers play an important part
in identifying, understanding and averting threats to Great Britain, Northern
Ireland and elsewhere. This Report was published after the hearing and the
parties will be given an opportunity to make submissions on the weight which
should be attached to it on the issue of proportionality, Issue 4. At this stage
we merely record these conclusions of the Report as indicating the purposes
for which the SIAs seek to use the powers which are in issue in this case. The
issue for this hearing is whether the use of such powers is justifiable at
domestic law and in accordance with the Convention, and we turn to the four
issues accordingly.
ISSUE 1
22
The issue, as posed, requires to be refined in the light of the facts which are
agreed between the parties: "Is it lawful under domestic law for a Secretary of
State to issue directions to telecommunications and internet service providers
(PECNs) to supply communications data to the Security Service and to GCHQ
and for them to store and examine it?"
23
We will address this first issue at domestic law, independently of the law of
the European Union and of the rights protected under the European
Convention on Human Rights (ECHR).
24
“Communications data" is defined by s. 21(4) Regulation of Investigatory
Powers Act 2000 ("RIPA"):
"(4). In this Chapter "Communications data" means any of the
following -(a) any traffic data comprised in or attached to a communication
(whether by the sender or otherwise) for the purposes of any postal
service or telecommunications system by means of which it is being or
may be transmitted;
(b) any information which includes none of the contents of a
communication (apart from any information falling within paragraph
(a)) and is about the use made by any person -(i) of any postal service or telecommunications service; or
(ii) in connection with the provision to or use by any person of any
telecommunications service, of any part of a telecommunications
system;
(c) any information not falling within paragraph (a)or (b) that is held
or obtained, in relation to persons to whom he provides the service, by
a person providing a postal service or telecommunications service."
12