susceptible to abuse and would inevitably lead to the acceptance of a total
surveillance approach.
213.
The Government’s other rationale for justifying bulk interception is that
even where the UK Intelligence Services “know the identity of targets,
their ability to understand what communications bearers those targets will
use is limited, and their ability to access those bearers is not guaranteed”,
making it “necessary…to intercept a selection of bearers, and…scan the
contents
of
all
those
bearers
for
the
wanted
communications”
(Observations, §1.29(2)). In other words, the Government relies on the
unpredictability of internet communications, namely the fact that such
communications are broken into packets, which may be transmitted via
different
routes,
to
justify
bulk
interception.127
The
Applicants
acknowledge that to initially intercept the communications of a particular
legitimate target (approved by an independent authority on the basis of
reasonable suspicion), it may be necessary in some circumstances to
initially intercept (as the Applicant’s define that term) a communications
bearer. But the Government should then immediately discard the
unwanted communications, rather than storing and analysing collateral
data. This technical limitation should not be used to justify the fishing
expedition the Government seeks to engage in under its primary rationale.
214.
The Applicants submit that the Government’s bulk interception regime is
not necessary and proportionate:
(1)
The scale of the bulk interception regime is unprecedented in terms
of (a) the number of individuals whose communications are
potentially affected; (b) the quantity of communications content and
The Government also claims that “[t]he s8(4) Regime was designed with the internet in mind,
and on the basis that some form of s. 8(4) Regime was required.” (Observations §4.2(1)). This
assertion is another iteration of the technical rationale for bulk interception. The Applicants note
that, whether or not that assertion is true, s8(4) makes no reference to the internet and it is clear
that developments in communications and surveillance technology have exceeded what could
possibly have been envisaged when RIPA was enacted sixteen years ago.
127
84