25.
There is no definition of property in s.5 of the ISA. The relevant provision,
set out above, simply refers to a warrant “authorising the taking . . . of such
action as is specified in the warrant in respect of any property [our
underlining] so specified or in respect of wireless telegraphy so specified”.
On the face of it, not only is the definition of property not limited to real or
personal property, but there is nothing to exclude intangible property. The
definition “any property”, would appear to include it, and this is emphasised
by the inclusion as an alternative subject matter of the warrant of “wireless
telegraphy”.
26.
There appear to be two matters which led the Claimants to pursue this
argument:
i)
The reference in a document published by Mr Snowden, and exhibited
by the Claimants, to there possibly being a s.5 warrant which permitted
interference with computer software in breach of copyright and
licensing agreements.
ii)
The reference in s.5(3), and in s.5(3A) (for MI5), to the inapplicability
of certain warrants in respect of “property in the British Islands”. Mr
Jaffey said that this is an inapt reference if intangible property is
intended. But there appears to us to be no answer either to Mr Beard
QC’s succinct submissions on this topic for the Respondents, including
the point that as defined by statute copyright is a collection of rights in
respect of the United Kingdom, or to that put by the Tribunal in
relation to choses in action such as bank accounts, which again would
have a geographical identity.
27.
The whole of this contention seemed to us to evaporate in the course of
argument, when Mr Jaffey accepted (Day 1/127, 138, Day 2/14-16) that
physical interference with property in the context of CNE authorised by a s.5
warrant may also involve an interference with copyright, which would then be
taken to be authorised, as compared with what he called a “pure interference
with intellectual property rights”, i.e. that interference with copyright would
be authorised if ancillary to interference with physical property.
28.
We can see no justification whatever for such a construction of the Statute.
We are satisfied that s.5 extends to intangible property, whether the action is
directed at intangible property alone or is ancillary to interference with
physical property. We note that this is also the view of the Intelligence
Services Commissioner (page 17 of his Report of 25 June 2015). A s.5 warrant
is as sufficient authority for such interference as is s.50 of the Copyright
Designs and Patents Act 1988, whereby “where the doing of a particular act is
specifically authorised by an Act of Parliament, whenever passed, . . . the
doing of that act does not infringe copyright”.
29.
An argument in relation to the possible impact of the EU Copyright Directive
(2001/29/EC), raised by Mr Jaffey in his pleadings and his skeleton argument,
was not pursued.
30.
Accordingly we resolve this issue in favour of the Respondents.