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Intelligence Agencies acted contrary to ECHR in collection of bulk data

Privacy International v Secretary of State for Foreign and Commonwealth Affairs & Ors [2016] UKIPTrib 15_110-CH

Related Member(s):
Jonathan Glasson QC
Related Practice Area(s):
Human Rights, Media and Information Law

The claimant, a human rights NGO, challenged the acquisition and use of bulk data by security and intelligence agencies, arguing that it was unlawful under domestic law and contrary to ECHR, art 8. The long-term use of powers to obtain bulk communications data and bulk personal datasets had only recently become public knowledge.

The Investigatory Powers Tribunal (IPT) considered whether the obtaining of bulk communications data under Telecommunications Act 1984, s 94 complied with domestic law, and ultimately found that the directions issued under s 94 relating to the obtaining of bulk communications data were lawful. The existence of the Regulation of Investigatory Powers Act 2000 and the Data Retention and Investigatory Powers Act 2014 did not displace the authority of s 94.

However, the IPT found that prior to the avowal of these practices in 2015, the collection and use of information was contrary to ECHR, art 8. There had been no Code of Practice in place, and it was not foreseeable by the public that s 94 was being used in this manner. While some oversight and supervision had existed, they were insufficient. This led the IPT to conclude that the acquisition and use of bulk data was not in accordance with law, as it failed to adhere to ECHR principles.

The published Handling Arrangements which came after the avowal provided for adequate restrictions on and review of data collection. The tribunal was satisfied that the systems now operated effectively and complied with art 8. There was sufficient detail relating to the duration for which data could be retained and the purpose for which data could be obtained and used.

The court adjourned consideration of whether the transfer of this data to other organisations was accompanied by sufficient safeguards in practice, and invited further submissions on this. It also did not consider whether the bulk data collection regimes were proportionate, in anticipation of further submissions in response to Mr Anderson QC’s Bulk Powers Review. These issues would be decided at the same time as the EU law issues in December.

Jonathan Glasson QC was Counsel to the Tribunal.