Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
grant of such a warrant, and one of the matters to be considered
is the effect and extent of the warrant in the light of the
specification of the property in that warrant.
42. As originally enacted, s.5(2) authorised the Secretary of
State to issue a warrant "authorising the taking ... of such action
as is specified in the warrant in respect of any property so
specified or in respect of wireless telegraphy so specified if the
Secretary of State: (a) thinks it necessary for the action to be
taken on the ground that it is likely to be of substantial value in
assisting ... [our underlining] (iii) GCHQ in carrying out any
function which falls within Section 3(l)(a) and (b) is satisfied that
what the action seeks to achieve cannot reasonably be achieved
by other means and (c) is satisfied that satisfactory arrangements
are in force under . . . Section 4(2)(a)above with respect to the
disclosure of information obtained ... and that any information
obtained under the warrant will be subject to those
arrangements".
43. "Specified” must mean the same in relation to each action,
property and wireless telegraphy. "Wireless telegraphy" as
defined by s.1l(e) of ISA meant "the emitting or receiving over
paths which are not provided by any material substance
constructed or arranged for that purpose, of electro magnetic
energy or frequency not exceeding 3 million megacycles per
second ... ". (s.19(1) Wireless Telegraphy Act 1949).
44. Given the width of meaning contained in the words "action"
and "wireless telegraphy" and, at least potentially, in the word
"property", specified cannot have meant anything more
restrictive than 'adequately described'. The key purpose of
specifying is to permit a person executing the warrant to know
when it is executed that the action which he is to take and the
property or wireless telegraphy with which he is to interfere is
within the scope of the warrant.
45. It therefore follows that a warrant issued under s.5 as
originally enacted was not required: i) to identify one or more
individual items of property by reference to their name, location
or owner or ii) to identify property in existence at the date on
which the warrant was issued. Warrants could therefore, for
example, lawfully be issued to permit GCHQ to interfere with
computers used by members, wherever located, of a group
whose activities could pose a threat to UK national security, or
be used to further the policies or activities of a terrorist
organisation or grouping, during the life of a warrant, even
though the members or individuals so described and/or of the
users of the computers were not and could not be identified when
the warrant was issued.