MR JUSTICE BURTON
Approved Judgment
It is still the intention that Clause 8(4) warrants should be
aimed at external communications. Clause 8(5) limits such a
warrant to authorising the interception of external
communications together with whatever other conduct is
necessary to achieve that external interception. Whenever
such a warrant is signed, the Secretary of State must be
convinced that the conduct it will authorise as a whole is
proportionate—my favourite word—to the objects to be
achieved. His decision to sign will be overseen by the
Interception of Communications Commissioner.”
69.
In the Interception of Communications Code of Practice (“the Code”) issued
pursuant to s.71 of RIPA, to which we will return, the definition of External
Communications was encapsulated in paragraph 5.1, under “Chapter 5; Interception
Warrants (s.8(4))”, as follows:
“5.1 This section applies to the interception of external
communications by means of a warrant complying with
section 8(4) of the Act. External communications are defined
by the Act to be those which are sent or received outside the
British Islands. They include those which are both sent and
received outside the British Islands, whether or not they pass
through the British Islands in course of their transit. They do
not include communications both sent and received in the
British Islands, even if they pass outside the British Islands
en route. Responsibility for the issuing of such interception
warrants rests with the Secretary of State.”
70.
S.8(4) is of course central to the issues in this part of the case. The Respondents
describe the s.8(4) regime in paragraph 66 of their skeleton as one which in
principle “permits a substantial volume of communications to be intercepted, and
then requires the application of a selection process to identify a smaller volume of
intercepted material that can actually be examined by persons, with a prohibition
on the remainder being so examined . . . To this extent, it differs from the regime
that applies under s. 8(1) of RIPA, under which interception warrants target a
specified person or single set of premises.”
71.
The Tribunal agrees with the statement of the Commissioner in paragraph 6.5.38 of
his Report that:
“The section 8(4) structure does not permit random trawling
of communications. This would be unlawful. It only permits a
search for communications referable to individuals the
examination of whose communications are certified as
necessary for a statutory purpose.”
72.
Although Amnesty in its skeleton argument hyperbolically describes the
Respondents’ purpose as “to obtain data wholesale from every living human being
with a working internet connection”, that is not the case as put orally by the
Claimants, and we are entirely clear that the Respondents are not seeking, nor
asserting that the system entitles them to seek, to carry out what has been described