treated by the Convention. It is, therefore, necessary to consider the issue
as a matter of principle. Is the Respondent correct that the “rather strict
standards” of the Court’s interception jurisprudence have no application if
material is initially intercepted by foreign intelligence services and then
access to it shared in some form? Or are the Applicants correct that the
standards applicable to interception are similarly required when access is
given to intercepted material even if the actual initial interception was
carried out by a foreign intelligence service?
242.
The difference between the parties’ positions can be illustrated by
considering how they apply to a number of scenarios:
(1)
Scenario 1 The UK Intelligence Services initially intercept a text
between A and B, who are both located in London, as the
communication is leaving the UK on transatlantic fibre optic cables;
(2)
Scenario 2 The NSA taps a transatlantic fibre optic cable arriving
in the USA. The UK Intelligence Services are given access to the
raw intercept material, allowing them to extract, filter, store,
analyse and/or disseminate communications (or communications
data) – including the same text between A and B – traveling along
this fibre optic cable.
(3)
Scenario 3 The NSA initially intercepts the same text between A
and B, who are both located in London, through one of its multiple
bulk interception programmes. The NSA, of its own volition or at the
request of the UK Intelligence Services, then provides the latter
access to the text.
243.
The Applicants’ position is that the UK Intelligence Services’ access to the
text between A and B (or of emails, calls or other communications in
similar circumstances) should, for the purposes of the in accordance with
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