PRIVACY INTERNATIONAL and (1) SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS (2) SECRETARY OF STATE FOR THE HOME DEPARTMENT (3) GOVERNMENT COMMUNICATIONS HEADQUARTERS (4) SECURITY SERVICE (5) SECRET INTELLIGENCE SERVICE

IPT/15/110/CH

This case concerns the acquisition and use by the intelligence services of:

  • Bulk Personal Datasets (BPD)
  • Bulk Communications Data (BCD
On Friday 8 September 2017 the Tribunal handed down its judgment following a four day hearing in June 2017. The Tribunal considered one of the issues left outstanding by its Judgment of 17 October 2016, namely whether the scheme of BCD and BPD complied with European law. The October judgment can be found here: http://www.ipt-uk.com/judgments.asp

The issues related to the recent decision of the European Court in Watson (Cases C-698/15 and C-203/15), and whether it applied to BCD. The parties agreed that there did not need to be such separate consideration in relation to BPD.

The first question was whether by virtue of Article 4 of the Treaty on European Union (TEU) and Article 1(3) of the e-Privacy Directive (EPD) the decision in Watson could be said to apply to matters of National Security at all. The second question related to whether (if it did) the Requirements laid down by the European Court in Watson were applicable to BCD.

The Tribunal made, after full consideration and a detailed judgment, a Reference to the European Court. It said as follows in paragraph 72 of its Judgment:

In our judgment, it is unclear whether, having regard to Article 4 TEU, and Article 1 (3) EPD, the activities of the intelligence services in relation to the acquisition and use of BCD for the purposes of national security:

  • are to any extent governed by Union law,
  • are subject to the requirements of Article 15(3) EPD in accordance with the decision in Watson, or, in accordance with Article 4 TEU and Article 1(3) EPD, and following the decisions in Parliament v Council and Ireland v Parliament, should be treated as outside the scope of the EPD, or
  • are subject to the requirements stipulated by the decision in Watson at paragraphs 119 125 and, if so, to what extent, taking into account the essential necessity of the SIAs to use bulk acquisition and automated processing techniques to protect national security and the extent to which such capabilities, if otherwise compliant with the ECHR, may be critically impeded by the imposition of such requirements.

Judgment dated : 8 Sep 17

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