law requirement, be treated in the same, or approximately the same way
under scenarios (1)-(3). In each scenario, the same communication is being
initially intercepted using similar techniques in the course of transmission.
Whether the UK Intelligence Services have full or partial control over the
means of initial interception is irrelevant to the question of the legal
regime that should apply. The “quality of the law”, in terms of its
foreseeability and the level of protection it provides against arbitrary
interference, must be of a similar nature.
244.
That is because all of the scenarios concern the legal provision necessary to
protect the same right to privacy, i.e. A and B’s right when they
communicate with one another in the UK not to have the UK Intelligence
Services access, extract, filter store, analyse or disseminate those
communications. The fact that the route by which the communications
reached the UK was via US initial interception (where the US authorities
may have done nothing more than tap a communication stream and where
the UK authorities extracted, filtered, analysed and/or stored the relevant
material) does not change the extent of the interference with A and B’s
privacy or the necessity of putting in place protections against such
interference occurring arbitrarily, disproportionately or unlawfully.
245.
The Respondent’s position is that scenario (1) should be approached quite
differently from scenarios (2)-(3) in terms of required minimum
safeguards. That cannot be correct. Where A and B communicate in
London, it is impossible to see why the safeguards that protect their
privacy from interference by the UK Government should be substantially
different between the scenarios. In each scenario, the UK Government is
able to access, store, analyse, collate with other information, disseminate
and use private communications (and communications data). The
interference with privacy, and the dangers that entails if not subject to
sufficient safeguards, is essentially the same whoever conducted the initial
interception.
95