MR JUSTICE BURTON
Approved Judgment
that information has not been separately confirmed by an
official statement by the UK Government. That long-standing
policy is applied in this Open Response.”
Because this hearing has been held on the basis of agreed assumed facts, it has not
been necessary to address this policy or its consequences.
THE PRISM ISSUE
14.
The alleged factual premises agreed for the purposes of the Prism issue (Issue (i))
are as follows:
“1. The US Government’s “Prism” system collects foreign
intelligence information from electronic communication service
providers under US court supervision. The US Government’s
“upstream
collection”
programme
obtains
internet
communications under US court supervision as they transit the
internet.
2. The Claimants’ communications and/or communications
data (i) might in principle have been obtained by the US
Government via Prism (and/or, on the Claimants’ case,
pursuant to the “upstream collection” programme) and (ii)
might in principle have thereafter been obtained by the
Intelligence Services from the US Government. Thereafter, the
Claimants’ communications and/or communications data might
in principle have been retained, used or disclosed by the
Intelligence Services (a) pursuant to a specific request from the
intelligence services and/or (b) not pursuant to a specific
request from the intelligence services.”
The issue itself is formulated as follows:
“In the light of factual premises (1) and (2) above, does the
statutory regime as set out in paragraphs 36-76 of the
Respondents’ Open Response to the Claims brought by Liberty
and Privacy satisfy the Art. 8(2) “in accordance with the law”
requirement?”
15.
The following matters are also in practice agreed between the parties as part of the
agreed assumptions:
i)
The NSA has a lawful basis for targeted interception pursuant to s.702 of the
Foreign Intelligence Surveillance Act 1978 (as amended) (“FISA”), and to
Executive Order 12333, pursuant to which Prism and “Upstream” are lawfully
sanctioned for “the targeting of persons reasonably believed to be located
outside the United States to acquire foreign intelligence information”.
According to the NSA’s ‘Mission Statement’ of 9 August 2013 “the collection
under . . . s.702 is the most significant tool in the NSA collection arsenal for
the detection, identification and disruption of terrorist threats to the U.S. and
round the world”: and according to the NSA’s Director of Civil Liberties and