meaningless distinction. Emails are placed on servers in the course of
transmission and telephone calls are routed through exchanges. These are
in principle no different from a modern communications “platform”.
Moreover, it was not until the proceedings before the IPT that the
Government even publicly disclosed such a distinction.
146.
The Government also attempts to dismiss any confusion as irrelevant on
the grounds that any distinction between “internal” and “external” is
“‘macro level” guidance for the UK Intelligence Services on which cables to
tap (Observations, §§4.71-4.72). In other words, the Government asserts
that such guidance is not meant to assist individuals in determining if
their communications might be intercepted. Yet, the whole purpose of the
foreseeability requirement is to allow the individual, who may be the
subject of surveillance, to understand the conditions under which the
Government may act to intercept entire communications cables. The legal
rules must be “sufficiently clear to give citizens an adequate indication as
to the circumstances in which and the conditions on which public
authorities are empowered” to intercept their communications (Zakharov,
§229).
147.
In response, the Government further asserts that clarification would be
both “impractical” and “pointless” (Observations, §4.69, note 140). It
explains that, “[t]he difficulty…is…[that] each time a new form of internet
communication is invented, or at least popularised, the Code would need to
be amended, published in draft, and laid before both House of Parliament,
in order specifically to explain how the distinction applied to the particular
type of communication at issue”. The Government’s response is contrary to
the view of the ISC and demonstrates apparent indifference towards the
importance of ensuring that there is a clear and accessible regime for bulk
interception.
Convenience is not a good reason for an absence of
foreseeability in interception legislation.
57