BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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27. On 9 October 2014 the IPT notified the applicants that it was of the
view that there was some closed material which could be disclosed. It
explained that it had invited the Government to disclose the material and
that the Government had agreed to do so. The material was accordingly
provided to the applicants in a note (“the 9 October disclosure”) and the
parties were invited to make submissions to the IPT on the disclosed
material.
28. The applicants sought information on the context and source of the
disclosure but the IPT declined to provide further details. The applicants
made written submissions on the disclosure.
29. The respondents subsequently amended and amplified the disclosed
material.
30. Following final disclosures made on 12 November 2014, the
9 October disclosure provided as follows:
“The US Government has publicly acknowledged that the Prism system and
Upstream programme ... permit the acquisition of communications to, from, or about
specific tasked selectors associated with non-US persons who are reasonably believed
to be located outside the United States in order to acquire foreign intelligence
information. To the extent that the Intelligence Services are permitted by the US
Government to make requests for material obtained under the Prism system (and/or ...
pursuant to the Upstream programme), those requests may only be made for
unanalysed intercepted communications (and associated communications data)
acquired in this way.
1. A request may only be made by the Intelligence Services to the government of a
country or territory outside the United Kingdom for unanalysed intercepted
communications (and associated communications data), otherwise than in accordance
with an international mutual legal assistance agreement, if either:
a.
a relevant interception warrant under [RIPA] has already been issued by the
Secretary of State, the assistance of the foreign government is necessary to
obtain the communications at issue because they cannot be obtained under the
relevant RIPA interception warrant and it is necessary and proportionate for the
Intelligence Services to obtain those communications; or
b.
making the request for the communications at issue in the absence of a relevant
RIPA interception warrant does not amount to a deliberate circumvention of
RIPA or otherwise contravene the principle established in Padfield v. Minister
of Agriculture, Fisheries and Food [1968] AC 997 [that a public body is
required to exercise its discretionary powers to promote (and not to circumvent)
the policy and the objects of the legislation which created those powers] (for
example, because it is not technically feasible to obtain the communications via
RIPA interception), and it is necessary and proportionate for the Intelligence
Services to obtain those communications. In these circumstances, the question
whether the request should be made would be considered and decided upon by
the Secretary of State personally. Any such request would only be made in
exceptional circumstances, and has not occurred as at the date of this statement.
...
2. Where the Intelligence Services receive intercepted communications content or
communications data from the government of a country or territory outside the United