1st November 2016
Andrew O’Connor QC, as part of a team composed of James Eadie QC, Andrew O’Connor QC and Richard O’Brien, appeared for the Foreign Secretary, the Home Secretary, GCHQ, the Security Service (MI5) and the Secret Intelligence Service (MI6), the Respondents in a claim made by Privacy International in the Investigatory Powers Tribunal.
The case concerns the acquisition and use of bulk data by the three Security and Intelligence Agencies (SIAs). The bulk data includes the “who, when, where and how” of both telephone and internet use – but not the content of the communications. In conjunction with other datasets, such as passport information, it provides the SIAs with an important and wide ranging capability, to discover details about persons of intelligence interest. Examples of its use include identifying foreign fighters and preventing access to firearms.
The IPT determined that:
· There is and has at all material times been a power to obtain bulk communications data by the issue of directions under section 94 of the Telecommunications Act 1984.
· The bulk personal datasets regime was not in accordance with the law under Article 8(2) ECHR until 11 March 2015, but has been in accordance with that law since that date.
· The bulk communications data regime was not in accordance with the law under Article 8(2) ECHR until 4 November 2015, but has been in accordance with that law since that date.
The IPT is due to consider issues of EU law and issues concerning the transfer of date at Article 8 at an adjourned hearing.