initially intercepted by the UK Government. This admission alone is
sufficient to satisfy the “scope of the legislation” requirement with respect
to the s8(4) claim.
255.
The Government then suggests that there is no relevant interference
unless the data is selected or examined (Observations, §4.1). There is no
support in this Court’s case law for this distinction. Even if this distinction
was tenable, the IPT concluded the UK Intelligence Services selected for
examination the communications of one of the Applicants, the South
African
Legal
Resources
Centre.135 That one
of
the
Applicants’
communications were selected for examination leads to a reasonable
inference that the other Applicants, who engage in similar work and
communicate with similar individuals and groups around the world, may
be “at realistic risk of selection/examination” (Observations, §4.1).
256.
In relation to the intelligence sharing claim, as discussed above, the US
Government captures communications in bulk, then shares at least some
of those communications with the UK Government. Under Executive
Order 12333 – a regime the UK Government does not all address in its
Observations – the US Government operates a range of programmes
around the world, which collect communications and communications data
in bulk. These programmes include those which intercept 194 million text
messages per day (DISHFIRE), nearly 5 billion records relating to mobile
phone locations (CO-TRAVELLER) and data directly as it transits to and
from Google and Yahoo’s private data centres (MUSCULAR). Under
section 702 of FISA, the US Government operates PRISM and Upstream,
the latter of which, like the s8(4) Regime, initially intercepts data in bulk
as it transits over fibre optic cables. Evidence suggests that the UK
Intelligence Agencies have access to material initially intercepted in bulk
The IPT also found that the UK Intelligence Services “accessed” the communications of
Amnesty International. It does not clarify what distinction, if any, exists between “accessed” and
“selected for examination” but the Applicants note that the Government itself considers both
Applicants to have had their communications selected and examined (Observations, §4.1).
135
99