CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 septembre 2018

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color:#474747 } .sEFE2FACD { border:0.75pt solid #949494; padding:2.48pt 5.03pt; vertical-align:middle } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sFA0E4E80 { margin-top:18pt; margin-left:31.75pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sD1313BC6 { margin-top:12pt; margin-left:51.85pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FIRST SECTION             CASE OF BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM   (Applications nos. 58170/13, 62322/14 and 24960/15)             JUDGMENT     STRASBOURG   13 September 2018         THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 25/05/2021       This judgment may be subject to editorial revision.   TABLE OF CONTENTS PROCEDURE THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background B.     The secret surveillance schemes 1.     Government Communications Headquarters (“GCHQ”) 2.     The United States’ National Security Agency (“NSA”) (a)     PRISM (b)     Upstream C.     Domestic proceedings in the first and second of the joined cases D.     Domestic proceedings in the third of the joined cases 1.     The hearing 2.     The IPT’s first judgment of 5 December 2014 (a)     The PRISM issue (b)     The section 8(4) issue 3.     The IPT’s second judgment of 6 February 2015 4.     The IPT’s third judgment of 22 June 2015 as amended by its 1 July 2015 letter II.   RELEVANT DOMESTIC LAW AND PRACTICE A.     The interception of communications 1.     Warrants: general 2.     Warrants: section 8(4) (a)     Authorisation (b)     “External” communications 3.     Specific safeguards under RIPA (a)     Section 15 (b)     Section 16 4.     The Interception of Communications Code of Practice 5.     Statement of Charles Farr 6.     Belhadj and Others v. Security Service, Secret Intelligence Service, Government Communications Headquarters, the Secretary of State for the Home Department, and the Secretary of State for the Foreign and Commonwealth Office, IPT/13/132-9/H and IPT/14/86/CH B.     Intelligence sharing 1.     British-US Communication Intelligence Agreement 2.     Relevant statutory framework for the operation of the intelligence services (a)     MI5 (b)     MI6 (c)     GCHQ (d)     Counter-Terrorism Act 2008 (e)     The Data Protection Act 1998 (“DPA”) (f)     The Official Secrets Act 1989 (“OSA”) (g)     The Human Rights Act 1998 (“HRA”) 3.     The Interception of Communications Code of Practice C.     Acquisition of communications data 1.     Chapter II of RIPA 2.     The Acquisition and Disclosure of Communications Data: Code of Practice 3.     News Group and Others v. The Commissioner of Police of the Metropolis IPT/14/176/H, 17 December 2015 4.     The Police and Criminal Evidence Act 1984 D.     IPT practice and procedure 1.     RIPA 2.     The Investigatory Powers Tribunal Rules 2000 (“the Rules”) 3.     IPT ruling on preliminary issues of law 4.     Counsel to the Tribunal E.     Oversight F.     Reviews of interception operations by the intelligence service 1.     Intelligence and Security Committee of Parliament: July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme 2.     Privacy and security: a modern and transparent legal framework 3.     “A Question of Trust”: Report of the Investigatory Powers Review by the Independent Reviewer of Terrorism Legislation (“the Anderson Report”) 4.     A Democratic Licence to Operate: Report of the Independent Surveillance Review (“ISR”) 5.     Report of the Bulk Powers Review 6.     Attacks in London and Manchester March-June 2017: Independent Assessment of MI5 and Police Internal Reviews 7.     Annual Report of the Interception of Communications Commissioner for 2016 (a)     Section 8(4) warrants (b)     Acquisition of communications data under Chapter II of RIPA G.     The Investigatory Powers Act 2016 H.     Relevant international law 1.     The United Nations (a)     Resolution no. 68/167 on The Right to Privacy in the Digital Age (b)     The Constitution of the International Telecommunication Union 1992 (c)     The 2006 Annual Report of the International Law Commission 2.     The Council of Europe (a)     The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 (b)     The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data regarding supervisory authorities and transborder data flows of 8   November 2001 (CETS No. 181) (c)     Recommendation of the Committee of Ministers on the protection of personal data in the area of telecommunication services (d)     The 2001 (Budapest) Convention on Cybercrime (e)     The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies I.     European Union law 1.     Charter of Fundamental Rights of the European Union Article 7 – Respect for private and family life Article 8 – Protection of personal data Article 11 – Freedom of expression and information 2.     EU directives and regulations relating to protection and processing of personal data 3.     Relevant case-law of the Court of Justice of the European Union (“CJEU”) (a)     Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Seitinger and Others (Cases C‑293/12 and C ‑ 594/12; ECLI:EU:C:2014:238) (b)     Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (Cases C ‑ 203/15 and C ‑ 698/15; ECLI:EU:C:2016:970) (c)     Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service and Secret Intelligence Service (IPT/15/110/CH; EU   OJ C   22, 22.1.2018, p. 29–30) THE LAW I.     EXHAUSTION OF DOMESTIC REMEDIES A.     The parties’ submissions 1.     The Government 2.     The applicants B.     The submissions of the third party C.     The Court’s assessment 1.     General principles 2.     Application of those principles to the case at hand II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A.     The section 8(4) regime 1.     Admissibility 2.     Merits (a)     The parties’ submissions (i)     The applicants (ii)     The Government (b)     The submissions of the third parties (i)     Article 19 (ii)     Access Now (iii)     ENNHRI (iv)     The Helsinki Foundation for Human Rights (“HFHR”) (v)     The International Commission of Jurists (“ICJ”) (vi)     Open Society Justice Initiative (“OSJI”) (vii)     European Digital Rights (“EDRi”) and other organisations active in the field of human rights in the information society (viii)     The Law Society of England and Wales (c)     The Court’s assessment (i)     General principles relating to secret measures of surveillance, including the interception of communications (ii)     Existing case-law on the bulk interception of communications (iii)     The test to be applied in the present case B.     The intelligence sharing regime 1.     Admissibility (a)     The parties’ submissions (b)     The Court’s assessment 2.     Merits (a)     The parties’ submissions (i)     The applicants (ii)     The Government (b)     The submissions of the third parties (i)     The Electronic Privacy Information Center (“EPIC”) (ii)     Access Now (iii)     Bureau Brandeis (iv)     Center for Democracy and Technology (“CDT”) and Pen American Center (“PEN America”) (v)     The International Commission of Jurists (“ICJ”) (vi)     Open Society Justice Initiative (“OSJI”) (vii)     The Law Society of England and Wales (viii)     Human Rights Watch (“HRW”) (c)     The Court’s assessment (i)     The scope of the applicants’ complaints (ii)     The nature of the interference (iii)     The applicable test (iv)     Application of the test to material falling into the second category (v)     Application of the test to material falling into the third category C.     The Chapter II regime 1.     Admissibility 2.     Merits (a)     The parties’ submissions (i)     The applicants (ii)     The Government (b)     The Court’s assessment (i)     Existing case-law on the acquisition of communications data (ii)     The approach to be taken in the present case (iii)     Examination of the Chapter II regime III.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A.     Admissibility 1.     The applicants in the third of the joined cases 2.     The applicants in the second of the joined cases B.     Merits 1.     The parties’ submissions (a)     The applicants (b)     The Government 2.     The submissions of the third parties (a)     The Helsinki Foundation for Human Rights (b)     The National Union of Journalists (“NUJ”) and the International Federation of Journalists (“IFJ”) (c)     The Media Lawyers’ Association (“MLA”) 3.     The Court’s assessment (a)     General principles (b)     The application of the general principles to the present case (i)     The section 8(4) regime (ii)     The Chapter II regime (iii)     Overall conclusion IV.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION V.     ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION COMBINED WITH ARTICLES 8 AND 10 OF THE CONVENTION VI.     APPLICATION OF ARTICLE 41 OF THE CONVENTION A.     Damage B.     Costs and expenses C.     Default interest FOR THESE REASONS, THE COURT: APPENDIX PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE KOSKELO, JOINED BY JUDGE TURKOVIĆ I.     The RIPA section 8(4) regime (i)     The context of earlier case-law (ii)     The context of the present case (iii)     Concerns II.     The intelligence-sharing regime JOINT PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGES PARDALOS AND EICKE Introduction Admissibility The section 8(4) regime Post Scriptum   In the case of Big Brother Watch and Others v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Kristina Pardalos,   Aleš Pejchal,   Ksenija Turković,   Armen Harutyunyan,   Pauliine Koskelo,   Tim Eicke, judges, and Abel Campos, Section Registrar, Having deliberated in private on 7 November 2017 and 3 July 2018, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in three applications (nos.   58170/13, 62322/14 and 24960/15) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the companies, charities, organisations and individuals listed in the Appendix (“the applicants”) on 4 September 2013, 11 September 2014 and 20   May 2015 respectively. 2.     The applicants were represented by Mr D. Carey, of Deighton Pierce Glynn Solicitors; Ms R. Curling of Leigh Day and Co. Solicitors; and Ms   E.   Norton of Liberty. The Government of the United Kingdom (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth Office. 3.     The applicants complained about the scope and magnitude of the electronic surveillance programmes operated by the Government of the United Kingdom. 4.     The applications were communicated to the Government on 7   January 2014, 5 January 2015 and 24 November 2015. In the first case, leave to intervene was granted to Human Rights Watch, Access Now, Bureau Brandeis, Center For Democracy & Technology, European Network of National Human Rights Institutions and the Equality and Human Rights Commission, the Helsinki Foundation For Human Rights, the International Commission of Jurists, Open Society Justice Initiative, The Law Society of England and Wales and Project Moore; in the second case, to the Center For Democracy & Technology, the Helsinki Foundation For Human Rights, the International Commission of Jurists, the National Union of Journalists and the Media Lawyers’ Association; and in the third case, to Article 19, the Electronic Privacy Information Center and to the Equality and Human Rights Commission. 5.     On 4 July 2017 the Chamber of the First Section decided to join the applications and hold an oral hearing. That hearing took place in public in the Human Rights Building, Strasbourg, on 7 November 2017.   There appeared before the Court: (a)     for the Government Ms   R. Sagoo ,   Agent , Mr   J. Eadie qc, Mr   J. Milford ,   Counsel , Ms   N. Samuel Mr   S. Bowden, Mr   M. Anstee, Mr   T. Rutherford, Ms   L. Morgan, Mr   B. Newman ,   Advisers. (b)     for the applicants Ms   D. Rose qc, Ms   H. Mountfield qc, Mr   M. Ryder qc,   Counsel, Mr   R. Mehta , Mr   C. McCarthy , Mr   D. Carey, Mr   N. Williams   Advisers.   6.     The Court heard addresses by Mr Eadie, Ms Rose and Ms Mountfield, as well as their replies to questions put by the President and by Judges   Koskelo, Harutyunyan, Eicke, Turković and Pardalos. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background 7 .     The three applications were introduced following revelations by Edward Snowden relating to the electronic surveillance programmes operated by the intelligence services of the United States of America and the United Kingdom. 8.     The applicants, who are listed in the Appendix, all believed that due to the nature of their activities, their electronic communications were likely to have either been intercepted by the United Kingdom intelligence services; obtained by the United Kingdom intelligence services after being intercepted by foreign governments; and/or obtained by the United Kingdom authorities from Communications Service Providers (“CSPs”). B.     The secret surveillance schemes 9.     Internet communications are primarily carried over international sub-marine fibre optic cables operated by CSPs. Each cable may carry several “bearers”, and there are approximately 100,000 of these bearers joining up the global Internet. A single communication over the Internet is divided into “packets” (units of data) which may be transmitted separately across multiple bearers. These packets will travel via a combination of the quickest and cheapest paths, which may also depend on the location of the servers. Consequently, some or all of the parts of any particular communication sent from one person to another, whether within the United Kingdom or across borders, may be routed through one or more other countries if that is the optimum path for the CSPs involved. 1.     Government Communications Headquarters (“GCHQ”) 10.     The Edward Snowden revelations indicated that GCHQ (being one of the United Kingdom intelligence services) was running an operation, codenamed “TEMPORA”, which allowed it to tap into and store huge volumes of data drawn from bearers. 11 .     According to the March 2015 Report of the Intelligence and Security Committee of Parliament (“the ISC report” – see paragraphs 151-159 below), GCHQ is operating two major processing systems for the bulk interception of communications. The United Kingdom authorities have neither confirmed nor denied the existence of an operation codenamed TEMPORA. 12.     The first of the two processing systems referred to in the ISC report is targeted at a very small percentage of bearers. As communications flow across the targeted bearers, the system compares the traffic against a list of “simple selectors”. These are specific identifiers (for example, an email address) relating to a known target. Any communications which match are collected; those that do not are automatically discarded. Analysts then carry out a “triage process” in relation to collected communications to determine which are of the highest intelligence value and should therefore be opened and read. In practice, only a very small proportion of the items collected under this process are opened and read by analysts. GCHQ does not have the capacity to read all communications. 13 .     The second processing system is targeted at an even smaller number of bearers (a subset of those accessed by the process described in the paragraph above) which are deliberately targeted as those most likely to carry communications of intelligence interest. This second system has two stages: first, the initial application of a set of “processing rules” designed to discard material least likely to be of value; and secondly, the application of complex queries to the selected material in order to draw out those likely to be of the highest intelligence value. Those searches generate an index, and only items on that index may potentially be examined by analysts. All communications which are not on the list must be discarded. 14.     The legal framework for bulk interception in force at the relevant time is set out in detail in the “Relevant Domestic law and practice” section below. In brief, section 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraph 67 below) allows the Secretary of State to issue warrants for the “interception of external communications”, and pursuant to section 16 of RIPA (see paragraphs 78-85 below) intercepted material cannot be selected to be read, looked at or listened to, “according to a factor which is referable to an individual who is known to be for the time being in the British Islands”. 2.     The United States’ National Security Agency (“NSA”) 15.     The NSA has acknowledged the existence of two operations called PRISM and Upstream. (a)     PRISM 16.     PRISM is a programme through which the United States’ Government obtains intelligence material (such as communications) from Internet Service Providers (“ISPs”). Access under PRISM is specific and targeted (as opposed to a broad “data mining” capability). The United States’ administration has stated that the programme is regulated under the Foreign Intelligence Surveillance Act (“FISA”), and applications for access to material through PRISM have to be approved by the FISA Court, which is comprised of eleven senior judges. 17.     Documents from the NSA leaked by Edward Snowden suggest that GCHQ has had access to PRISM since July 2010 and has used it to generate intelligence reports. GCHQ has acknowledged that it acquired information from the United States’ which had been obtained via PRISM. (b)     Upstream 18.     According to the leaked documents, the Upstream programme allows the collection of content and communications data from fibre-optic cables and infrastructure owned by United States’ CSPs. This programme has broad access to global data, in particular that of non-US citizens, which can then be collected, stored and searched using keywords. C.     Domestic proceedings in the first and second of the joined cases 19.     The applicants in the first of the joined cases (application no.   58170/13) sent a pre-action protocol letter to the Government on 3   July 2013 setting out their complaints and seeking declarations that sections   1 and 3 of the Intelligence Services Act (see paragraphs 100-103 below), section 1 of the Security Services Act (see paragraph 99 below) and section   8 of RIPA (see paragraph 67 below) were incompatible with the Convention. In their reply of 26 July 2013, the Government stated that the effect of section 65(2) of RIPA was to exclude the jurisdiction of the High Court in respect of human rights complaints against the intelligence services. These complaints could however be raised in the Investigatory Powers Tribunal (“IPT”), a court established under RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act, which was endowed with exclusive jurisdiction to investigate any complaint that a person’s communications have been intercepted and, where interception has occurred, to examine the authority for such interception (see paragraphs 123-143 below). No further action was taken by these applicants. 20.     The applicants in the second of the joined cases (application no.   62322/14) did not bring any domestic proceedings as they did not believe that they had an effective remedy for their Convention complaints. D.     Domestic proceedings in the third of the joined cases 21.     The ten human rights organisations which are the applicants in the third of the joined cases (application no. 24960/15) each lodged a complaint before the IPT between June and December 2013. They alleged that the intelligence services, the Home Secretary and the Foreign Secretary had acted in violation of Articles 8, 10, and 14 of the Convention by: (i)   accessing or otherwise receiving intercepted communications and communications data from the US Government under the PRISM and Upstream programmes (“the PRISM issue”); and (ii) intercepting, inspecting and retaining their communications and their communications data under the TEMPORA programme (“the section 8(4) issue”). The applicants sought disclosure of all relevant material relied on by the intelligence services in the context of their interception activities and, in particular, all policies and guidance. 22.     On 14 February 2014 the IPT ordered that the ten cases be joined. It subsequently appointed Counsel to the Tribunal (see paragraph 142 below), whose function is to assist the IPT in whatever way it directs, including by making representations on issues in relation to which not all parties can be represented (for example, for reasons of national security). 23.     In their response to the applicants’ claims, the Government adopted a “neither confirm nor deny” approach, that is to say, they declined to confirm or deny whether the applicants’ communications had actually been intercepted. It was therefore agreed that the IPT would determine the legal issues on the basis of assumed facts to the effect that the NSA had obtained the applicants’ communications and communications data via PRISM or Upstream and had passed them to GCHQ, where they had been retained, stored, analysed and shared; and that the applicants’ communications and communications data had been intercepted by GCHQ under the TEMPORA programme and had been retained, stored, analysed and shared. The question was whether, on these assumed facts, the interception, retention, storage and sharing of data was compatible with Articles 8 and 10, taken alone and together with Article 14 of the Convention. 1.     The hearing 24 .     The IPT, composed of two High Court Judges (including the President), a Circuit Judge and two senior barristers, held a five-day, public hearing from 14-18 July 2014. The Government requested an additional closed hearing in order to enable the IPT to consider GCHQ’s unpublished – described during the public hearing as “below the waterline” – internal arrangements for processing data. The applicants objected, arguing that the holding of a closed hearing was not justified and that the failure to disclose the arrangements to them was unfair. 25.     The request for a closed hearing was granted pursuant to Rule 9 of the IPT’s Rules of Procedure (see paragraph 131 below) and on 10   September 2014 a closed hearing took place, at which neither the applicants nor their representatives were present. Instead, the IPT was “assisted by the full, perceptive and neutral participation ... of Counsel to the Tribunal”, who performed the following roles: (i) identifying documents, parts of documents or gists that ought properly to be disclosed; (ii) making such submissions in favour of disclosure as were in the interests of the Claimants and open justice; and (iii) ensuring that all the relevant arguments (from the Claimants’ perspective) on the facts and the law were put before the IPT. 26 .     In the closed hearing, the IPT examined the internal arrangements regulating the conduct and practice of the intelligence services. It found that it was entitled to look “below the waterline” to consider the adequacy of the applicable safeguards and whether any further information could or should be disclosed to the public in order to comply with the requirements of Articles   8 and 10. 27.     On 9 October 2014 the IPT notified the applicants that it was of the view that there was some closed material which could be disclosed. It explained that it had invited the Government to disclose the material and that the Government had agreed to do so. The material was accordingly provided to the applicants in a note (“the 9 October disclosure”) and the parties were invited to make submissions to the IPT on the disclosed material. 28.     The applicants sought information on the context and source of the disclosure but the IPT declined to provide further details. The applicants made written submissions on the disclosure. 29.     The respondents subsequently amended and amplified the disclosed material. 30 .     Following final disclosures made on 12 November 2014, the 9   October disclosure provided as follows: “The US Government has publicly acknowledged that the Prism system and Upstream programme ... permit the acquisition of communications to, from, or about specific tasked selectors associated with non-US persons who are reasonably believed to be located outside the United States in order to acquire foreign intelligence information. To the extent that the Intelligence Services are permitted by the US Government to make requests for material obtained under the Prism system (and/or ... pursuant to the Upstream programme), those requests may only be made for unanalysed intercepted communications (and associated communications data) acquired in this way. 1.     A request may only be made by the Intelligence Services to the government of a country or territory outside the United Kingdom for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual legal assistance agreement, if either: a relevant interception warrant under [RIPA] has already been issued by the Secretary of State, the assistance of the foreign government is necessary to obtain the communications at issue because they cannot be obtained under the relevant RIPA interception warrant and it is necessary and proportionate for the Intelligence Services to obtain those communications; or making the request for the communications at issue in the absence of a relevant RIPA interception warrant does not amount to a deliberate circumvention of RIPA or otherwise contravene the principle established in Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 [that a public body is required to exercise its discretionary powers to promote (and not to circumvent) the policy and the objects of the legislation which created those powers] (for example, because it is not technically feasible to obtain the communications via RIPA interception), and it is necessary and proportionate for the Intelligence Services to obtain those communications. In these circumstances, the question whether the request should be made would be considered and decided upon by the Secretary of State personally. Any such request would only be made in exceptional circumstances, and has not occurred as at the date of this statement. ... 2.     Where the Intelligence Services receive intercepted communications content or communications data from the government of a country or territory outside the United Kingdom, irrespective of whether it is/they are solicited or unsolicited, whether the content is analysed or unanalysed, or whether or not the communications data are associated with the content of communications, the communications content and data are, pursuant to internal ‘arrangements’, subject to the same internal rules and safeguards as the same categories of content or data, when they are obtained directly by the Intelligence Services as a result of interception under RIPA. 3.     Those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant have internal ‘arrangements’ that require a record to be created, explaining why access to the unanalysed intercepted material is required, before an authorised person is able to access such material pursuant to s.16 of RIPA. 4.     The internal ‘arrangements’ of those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant specify (or require to be determined, on a system-by-system basis) maximum retention periods for different categories of such data which reflect the nature and intrusiveness of the particular data at issue. The periods so specified (or determined) are normally no longer than 2 years, and in certain cases are significantly shorter (intelligence reports that draw on such data are treated as a separate category, and are retained for longer). Data may only be retained for longer than the applicable maximum retention period where prior authorisation has been obtained from a senior official within the particular Intelligence Service at issue on the basis that continued retention of the particular data at issue has been assessed to be necessary and proportionate (if the continued retention of any such data is thereafter assessed no longer to meet the tests of necessity and proportionality, such data are deleted). As far as possible, all retention periods are implemented by a process of automated deletion which is triggered once the applicable maximum retention period has been reached for the data at issue. The maximum retention periods are overseen by, and agreed with the Commissioner. As regards related communications data in particular, Sir Anthony May made a recommendation to those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s8(4) warrant, and the interim Commissioner (Sir Paul Kennedy) has recently expressed himself to be content with the implementation of that recommendation. 5.     The Intelligence Services’ internal ‘arrangements’ under [the Security Services Act 1989], [the Intelligence Services Act 1994] and ss.15-16 of RIPA are periodically reviewed to ensure that they remain up-to-date and effective. Further, the Intelligence Services are henceforth content to consider, during the course of such periodic reviews, whether more of those internal arrangements might safely and usefully be put into the public domain (for example, by way of inclusion in a relevant statutory Code of Practice).” 2.     The IPT’s first judgment of 5 December 2014 31.     The IPT issued its first judgment on 5 December 2014. The judgment addressed the arrangements then in place for intercepting and sharing data, making extensive reference throughout to this Court’s case-law. (a)     The PRISM issue 32 .     The IPT accepted that the PRISM issue engaged Article 8 of the Convention, albeit at a “lower level” than the regime under consideration in Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI. As a consequence, there would need to be compliance by the authorities involved in processing the data with the requirements of Article 8, particularly in relation to storage, sharing, retention and destruction. In the IPT’s view, in order for the interference to be considered “in accordance with the law”, there could not be unfettered discretion for executive action; rather, the nature of the rules had to be clear and the ambit of the rules had – in so far as possible – to be in the public domain (citing Bykov v. Russia [GC], no.   4378/02, §§ 76 and 78, 10 March 2009 and Malone v. the United Kingdom , 2 August 1984, Series A no. 82). However, it considered it plain that in the field of national security, much less was required to be put in the public domain and the degree of foreseeability required by Article 8 had to be reduced, otherwise the whole purpose of the steps taken to protect national security would be at risk (citing Leander v. Sweden , 26   March 1987, § 51, Series A no. 116). 33.     The IPT continued: “41.     We consider that what is required is a sufficient signposting of the rules or arrangements insofar as they are not disclosed ... We are satisfied that in the field of intelligence sharing it is not to be expected that rules need to be contained in statute ( Weber ) or even in a code (as was required by virtue of the Court’s conclusion in Liberty v. [the United Kingdom, no. 58243/00, 1 July 2008]). It is in our judgment sufficient that: i)     Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it (as per Malone ...). ii)     They are subject to proper oversight.” 34 .     The IPT noted that arrangements for information sharing were provided for in the statutory framework set out in the Security Services Act 1989 (“the SSA” – see paragraphs 98-99 below) and the Intelligence Services Act 1994 (“the ISA” – see paragraphs 100-103 below). It further referred to a witness statement of Charles Farr, the Director-General of the Office for Security and Counter Terrorism (“OSCT”) at the Home Office, in which he explained that the statutory framework set out in those Acts was underpinned by detailed internal guidance, including arrangements for securing that the services only obtained the information necessary for the proper discharge of their functions. He further indicated that staff received mandatory training on the legal and policy framework in which they operated, including clear instructions on the need for strict adherence to the law and internal guidance. Finally, he stated that the full details of the arrangements were confidential since they could not be published safely without undermining the interests of national security. 35.     The IPT therefore acknowledged that as the arrangements were not made known to the public, even in summary form, they were not accessible. However, the IPT considered it significant that the arrangements were subject to oversight and investigation by the Intelligence and Security Committee of Parliament and the independent Interception of Communications Commissioner. Furthermore, it itself was in a position to provide oversight, having access to all secret information, and being able to adjourn into closed hearing to assess whether the arrangements referred to by Mr Farr existed and were capable of giving the individual protection against arbitrary interference. 36.     In so far as the claimants challenged the IPT’s decision to look “below the waterline” when assessing the adequacy of the safeguards, the IPT considered itself entitled to look at the internal arrangements in order to be satisfied that there were adequate safeguards and that what was described as “above the waterline” was accurate and gave a sufficiently clear signposting as to what was “below the waterline” without disclosing the detail of it. In this regard, the IPT did not accept that the holding of a closed hearing, as had been carried out in the applicants’ case, was unfair. It accorded with the statutory procedure, gave the fullest and most transparent opportunity for hearing full arguments inter partes on hypothetical and actual facts with as much as possible heard in public, and protected the public interest and national security. 37.     Having considered the arrangements “below the waterline”, the IPT was satisfied that the 9 October disclosure (as subsequently amended) provided a clear and accurate summary of that part of the evidence given in the closed hearing which could and should be disclosed and that the rest of the evidence given in closed hearing was too sensitive for disclosure without risk to national security or to the “neither confirm nor deny” principle. It was further satisfied that it was clear that the preconditions for requesting information from the United States Government were either the existence of a section 8(1) warrant, or the existence of a section 8(4) warrant within whose ambit the proposed target’s communications fell, together, if the individual was known to be in the British Islands, with a section 16(3) modification (see paragraph 80 below). In other words, any request pursuant to PRISM or Upstream in respect of intercept or communications data would be subject to the RIPA regime, unless it fell within the wholly exceptional scenario outlined in 1(b) of the material disclosed after the first hearing. However, a 1(b) request had never occurred. 38.     The IPT nevertheless identified the following “matter of concern”: “Although it is the case that any request for, or receipt of, intercept or communications data pursuant to Prism and/or Upstream is ordinarily subject to the same safeguards as in a case where intercept or communication data are obtained directly by the Respondents, if there were a 1(b) request, albeit that such request must go to the Secretary of State, and that any material so obtained must be dealt with pursuant to RIPA, there is the possibility that the s.16 protection might not apply. As already indicated, no 1(b) request has in fact ever occurred, and there has thus been no problem hitherto. We are however satisfied that there ought to be introduced a procedure whereby any such request, if it be made, when referred to the Secretary of State, must address the issue of s.16(3).” 39.     However, subject to this caveat, the IPT reached the following conclusions: “(i)     Having considered the arrangements below the waterline, as described in this judgment, we are satisfied that there are adequate arrangements in place for the purpose of ensuring compliance with the statutory framework and with Articles 8 and 10 of the Convention, so far as the receipt of intercept from Prism and/or Upstream is concerned. (ii)     This is of course of itself not sufficient, because the arrangements must be sufficiently accessible to the public. We are satisfied that they are sufficiently signposted by virtue of the statutory framework to which we have referred and the Statements of the ISC and the Commissioner quoted above, and as now, after the two closed hearings that we have held, publicly disclosed by the Respondents and recorded in this judgment. (iii)     These arrangements are subject to oversight. (iv)     The scope of the discretion conferred on the Respondents to receive and handle intercepted material and communications data and (subject to the s.8(4) issues referred to below) the manner of its exercise, are accordingly (and consistent with