MR JUSTICE BURTON
Approved Judgment
used by the target to contact his criminal associates). To give a
further example, a covert human intelligence source may be
able to provide information about a target as a result of his or
her friendship (or more intimate relationship) with the target
that is more private than information that could be obtained
from, for instance, intercepting the target’s emails.
30. Nor can some general distinction be drawn between
intelligence from interception and the other forms of covert
intelligence identified in paragraph 27 above in terms of how
likely it is that the individual targets in question will in practice
be able to predict or foresee the possibility of the relevant
investigative measures being taken against them. All forms of
covert intelligence-gathering necessarily seek to benefit from a
lack of awareness on the part of the target in order to maximise
the chance of obtaining valuable intelligence. Interception is,
in this regard, no different from, for instance, covert
surveillance or the use of covert human intelligence sources.”
27.
Mr Eadie submits that it would be inappropriate and unnecessary to differentiate
between the different kinds of information which might be supplied e.g. to foil a
bomb plot in London, and impracticable to try to draw a distinction between
information derived from intercept and not so derived or to seek explanations or
make enquiries from NSA or any other agency as to whether information supplied
did or did not derive from Prism or any other system of interception.
28.
Mr Squires, for Privacy, who carried the burden of the argument on this issue on the
part of all the Claimants, responded by making clear that the Claimants are not
contending that the submissions he is making in this case apply to any information
not obtained by intercept by the NSA. It appeared to us from his submissions that
information from the NSA would fall into three categories:
29.
i)
material which on its face derives from intercept, provided unsolicited;
ii)
communications which the Respondents have requested the NSA to intercept,
or to make available to them as intercept, because they are themselves unable
to do so (‘solicited intercept’);
iii)
all other information or communications obtained from the NSA by way of
shared information, as discussed by Mr Farr.
So far as the first category is concerned, Mr Ryder QC pointed by way of analogy to
s.15(8) of RIPA, which provides:
“In this section “copy”, in relation to intercepted material or
related communications data, means any of the following
(whether or not in documentary form) –
(a) any copy, extract or summary of the material or data which
identifies itself as the product of an interception.”