Mr Justice Burton (The President):
1.
This is the judgment of the Tribunal.
2.
This has been a hearing in respect of the claim by Privacy International, the
well known NGO, and seven internet service providers, of which Greennet
Limited carries on operations in this country and the other Claimants have
customers in this country, though their main operations are based abroad. The
hearing has been of preliminary issues of law, whose purpose is to establish
whether, if the Second Respondent (“GCHQ”) carries on the activity which is
described as CNE (Computer Network Exploitation), which may have affected
the Claimants, it has been lawful. The now well established procedure for this
Tribunal is to make assumptions as to the significant facts in favour of
claimants and reach conclusions on that basis, and only once it is concluded
whether or not, if the assumed facts were established, the respondent’s
conduct would be unlawful, to consider the position thereafter in closed
session. This procedure has enabled the Tribunal, on what is now a number of
occasions, to hold open inter partes hearings, without possible damage to
national security, while preserving, where appropriate, the Respondents’
proper position of Neither Confirmed Nor Denied (“NCND”).
3.
Various possible different methods or consequences of CNE, or in its
colloquial form ‘hacking’, as summarised in paragraph 9 below, have been
canvassed in the witness statements produced on behalf of the Claimants by
Mr Eric King, Professor Ross Anderson and Professor Peter Sommer, to
which there have been responses, always subject to the constraints of NCND,
in the witness statements of Mr Ciaran Martin, the Director General of Cyber
Security at GCHQ. The particular significance of the use of CNE is that it
addresses difficulties for the Intelligence Agencies caused by the ever
increasing use of encryption by those whom the Agencies would wish to target
for interception. The Claimants point out that CNE inevitably goes beyond
interception, in accessing what is not and would not be communicated. The
context of the issue is that the security situation for the United Kingdom,
presently described as severe, is such that there needs to be the most diligent
possible protection by the Respondents of the citizens and residents of the UK.
Mr Martin points out in his first witness statement that even in the past year
the threat to the UK from international terrorism in particular has continued to
increase, and Mr Eadie QC for the Respondents submitted that proper
protection of the citizen against terrorist attack is of the most fundamental
importance, and that technological capabilities operated by the Intelligence
Agencies lie at the very heart of the attempts of the State to safeguard the
citizen against terrorist attack.
4.
The sections of the Intelligence Services Act 1994 (“ISA”) which have been
primarily under consideration at this hearing are s.3, which sets out the powers
of GCHQ, s.5 (with its machinery in part set out in s.6) and s.7. We shall refer
to a s.5 warrant and a s.7 authorisation:
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