Privacy International and Greennet & Others v.s (1) The Secretary of State for Foreign and Commonwealth Affairs (2) The Government Communications Headquarters

IPT 14/85/CH 14/120-126/CH

The Tribunal considered the Claimants’ allegations (which were for the purposes of the hearing assumed to be true) as to the activities of GCHQ in carrying out Computer Network Exploitation (CNE), colloquially ‘hacking’, pursuant to warrants under Sections 5 and 7 of the Intelligence Services Act 1994. The Tribunal was asked to consider a number of issues of law, based on assumed facts, as to whether such activity was or would be (subject to the legality, proportionality and necessity of any particular warrant, or conduct under it, on the facts) lawful in accordance with domestic law and Articles 8 and 10 of the ECHR.

The Tribunal concluded that acts of CNE pursuant to such warrants by GCHQ would in principle be lawful both before and after the amendment of Section 10 of the Computer Misuse Act 1990 in 2014. The Tribunal considered and gave guidance as to how specific a Section 5 warrant would have to be in its description of the property in respect of CNE, and concluded that warrants compliant with such guidance would be lawful both at domestic law and so as to comply with the Convention.

The Tribunal considered the Covert Surveillance Property Interference Code (as amended from time to time since 2002) and the draft 2015 Equipment Interference Code of Practice, which in practice had been in effect since February 2015, and concluded that the regime governing the operation of Section 5 warrants, both before and after February 2015, complied with Articles 8 and 10 of the ECHR. In relation to a Section 7 warrant concerning the authorisation of acts outside the British Islands, there was an issue as to whether the Convention would apply, at least in the absence of particular facts relating to an individual case, and the Tribunal therefore reached no conclusion that the Section 7 regime was non-compliant with the Convention. In relation to the specific issue of the adequacy of dealing with legal and professional privilege, the Tribunal concluded that the CNE regime had been compliant with the Convention since February 2015 (see also the Belhadj decision at 5.7 above as to the position prior to February 2015).

Judgment dated : 12 Feb 16

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