persons who are not and will never be subjects of interest to them.”6 The
Independent Reviewer returned to the issue of bulk powers in his August
2016 “Report of the Bulk Powers Review”, which examined the operational
case for such powers in the Investigatory Powers Bill, currently being
debated by the UK Parliament.7 There he noted that one definition is a
power “allow[ing] public authorities…to have access for specified purposes
to large quantities of data, a significant portion of which is not associated
with current targets”.8
29.
The Applicants note that it is only the term “targeted” that has been
defined with any specificity in the reports above. They accordingly adopt a
definition of “targeted” similar to that used by the ISC but, more
importantly, which draws on the Court’s own discussion of the appropriate
scope of review for government authorisation of surveillance activities in
Zakharov v Russia (2015) 39 BHRC 435. In that case, the Court
“reiterate[d] that [the scope of review] must be capable of verifying the
existence of a reasonable suspicion against the person concerned, in
particular, whether there are factual indications for suspecting that person
of planning, committing or having committed criminal acts or…other acts
that may give rise to secret surveillance measures, such as, for example,
acts endangering national security.” (§260).
30.
Thus, the Applicants define “targeted” conduct as interception aimed at
the collection of communications in circumstances where there is
reasonable suspicion that a specific target has committed or is likely to
commit a criminal offence or is engaging in acts amounting to a threat to
national security.9 Given the lack of consistency in the above attempts to
INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, A QUESTION OF TRUST: REPORT OF THE
INVESTIGATORY POWERS REVIEW (2015) para 10.22 (“A Question of Trust”).
7 INDEPENDENT REVIEWER OF T ERRORISM L EGISLATION, REPORT OF THE BULK POWERS REVIEW,
2016, Cm 9326 (UK) (“Report of the Bulk Powers Review”). Index of Annexed Documents for the
Applicants’ Reply No. 32 (“Reply Annex”)
8 Report of the Bulk Powers Review, para 1.5. Reply Annex No. 32
9 This Court has noted that the definition of “national security” needs to be defined carefully so as
to avoid an overly broad interpretation. See Zakharov, §248: “It is significant that [the law
6
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