CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 25 mai 2021

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margin-left:auto; border-collapse:collapse } .sADC94CD6 { height:15pt } .sD8FFEC01 { border:0.75pt solid #949494; padding:2.48pt 5.03pt; vertical-align:middle; background-color:#dfdfdf } .s4A66B09A { margin-top:6pt; margin-bottom:6pt; text-align:justify; font-size:12pt } .sEFE2FACD { border:0.75pt solid #949494; padding:2.48pt 5.03pt; vertical-align:middle } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s4B8D41EE { font-family:Arial; font-size:10pt }   GRAND CHAMBER       CASE OF BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM   (Applications nos. 58170/13, 62322/14 and 24960/15)       JUDGMENT   Art 8 • Private life • Convention compliance of secret surveillance regime including bulk interception of communications and intelligence sharing • Need to develop case-law in light of important differences between targeted interception and bulk interception • Adapted test for examining bulk interception regimes through global assessment • Focus on “end-to-end safeguards” to take into account the increasing degree of intrusion with privacy rights as the bulk interception process moves through different stages • Fundamental deficiencies present in bulk interception regime, through absence of independent authorisation, failure to include categories of selectors in the application for a warrant, and failure to subject selectors linked to an individual to prior internal authorisation • Sufficient foreseeability and safeguards in regime for receipt of intelligence from foreign intelligence services • Regime for acquisition of communications data from communications service providers not “in accordance with law” Art 10 • Freedom of expression • Insufficient protection of confidential journalist material under electronic surveillance schemes   STRASBOURG   25 May 2021     This judgment is final but it may be subject to editorial revision. In the case of Big Brother Watch and Others v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President,   Jon Fridrik Kjølbro,   Angelika Nußberger,   Paul Lemmens,   Yonko Grozev,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Iulia Antoanella Motoc,   Carlo Ranzoni,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Marko Bošnjak,   Tim Eicke,   Darian Pavli,   Erik Wennerström,   Saadet Yüksel, judges, and Søren Prebensen, Deputy Grand Chamber Registrar, Having deliberated in private on 11 July 2019, on 4 and 6   September   2019 and on 17 February 2021, 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 annex (“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 United Kingdom Government (“the   Government”) were represented by their Agent, Mr   C.   Wickremasinghe, of the then 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, Dutch Against Plasterk , 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, leave to intervene was granted 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. In the third case, leave to intervene was granted to Article 19, the Electronic Privacy Information Center and to the Equality and Human Rights Commission. 5.     On 4 July 2017, a 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. On 13   September 2018, a Chamber of that Section, composed of Linos ‑ Alexandre Sicilianos, Kristina Pardalos, Aleš Pejchal, Ksenija Turković, Armen   Harutyunyan, Pauliine Koskelo and Tim Eicke, judges, and Abel   Campos, Section Registrar, gave judgment. The Chamber unanimously declared inadmissible the complaints made by the applicants in the third of the joined cases concerning Article 6, Article 10, in so far as the applicants relied on their status as NGOs, and Article 14, and declared admissible the remainder of the complaints made by those applicants. By a majority, it declared admissible the complaints made by the applicants in the first and second of the joined cases. Also by a majority, it held that there had been a violation of Articles 8 and 10 of the Convention in respect of both the section 8(4) regime and the Chapter II regime, and it held that there had been no violation of Article 8 of the Convention in respect of the intelligence sharing regime. The partly concurring, partly dissenting opinion of Judge Koskelo, joined by Judge   Turković, and the joint partly dissenting and partly concurring opinion of Judges Pardalos and Eicke were annexed to the judgment. 6.     On 12 December 2018 and 11 December 2018 respectively, the applicants in the first and third of the joined cases requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 4 February 2019, the panel of the Grand Chamber granted that request. 7.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. 8.     The applicants and the Government each filed observations (Rule 59 §   1) on the admissibility and merits of the case. 9.     The President of the Grand Chamber granted leave to intervene in the written procedure, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules, to the Governments of France, Norway and the Netherlands, and to the United Nations’ Special Rapporteur on the promotion of the right to freedom of opinion and expression . 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 10 July 2019. There appeared before the Court: (a)     for the Government Mr   C. Wickremasinghe,   Agent , Mr   J. Eadie Q.C. and Mr   J. Mitford,   Counsel , Mr   R. Yardley, Ms   L. Morgan, Mr   H. Mawby, Mr   T. Rutherford and Mr   J. Keay-Bright,   Advisers ; (b)     for the applicants Mr   B. Jaffey Q.C., Ms   H. Mountfield Q.C. , Mr   C. McCarthy , Mr   R. Mehta, Ms   G. Sarathy and Mr D. Heaton,   Counsel , Mr   D . Carey and Ms   R. Curling,   Advisers .   11.     The Court heard addresses by Mr Eadie, Mr Jaffey and Ms   Mountfield, as well as their replies to questions. THE FACTS BACKGROUND 12 .     The three applications were introduced following revelations by Edward Snowden concerning the electronic surveillance programmes operated by the intelligence services of the United States of America and the United Kingdom. 13.     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”). THE RELEVANT INTERNET SECRET SURVEILLANCE SCHEMES 14.     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. Consequently, some or all of the packets 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. The United Kingdom Bulk interception 15.     The Edward Snowden revelations made in 2013 indicated that Government Communications Headquarters (“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. The United Kingdom authorities neither confirmed nor denied the existence of an operation codenamed TEMPORA. 16 .     However, according to the March 2015 Report of the Intelligence and Security Committee of Parliament (“the ISC report” – see paragraphs   142 ‑ 149 below), GCHQ was operating two major processing systems for the bulk interception of communications. 17.     The first of the two processing systems referred to in the ISC report was targeted at a very small percentage of bearers. As communications flowed across the targeted bearers, the system compared the traffic against a list of “simple selectors”. These were specific identifiers (for example, an email address) relating to a known target. Any communications which matched the simple selectors were collected; those that did not were automatically discarded. Analysts then carried out a “triage process” in relation to collected communications to determine which were 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 were opened and read by analysts. According to the ISC report, GCHQ did not have the capacity to read all communications. 18 .     The second processing system was targeted at an even smaller number of bearers (a subset of those accessed by the process described in the paragraph above) which were deliberately targeted as those most likely to carry communications of intelligence interest. This second system had 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 generated an index, and only items on that index could be examined by analysts. All communications which were not on the index had to be discarded. 19.     The legal framework for bulk interception in force at the relevant time is set out in detail in the “relevant domestic law” section below. In brief, section 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraph 72 below) allowed the Secretary of State to issue warrants for the “interception of external communications”, and pursuant to section 16 of RIPA (see paragraphs 84-92 below) intercepted material could not 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”. Intelligence sharing 20.     Chapter 12 of the Interception of Communications Code of Practice (“the IC Code” – see paragraph 116 below) set out the circumstances in which the United Kingdom intelligence services could request intelligence from foreign intelligence services, and the procedures which had to be followed for making such a request. Chapter 12 was added to the IC Code after the Investigatory Powers Tribunal (“the IPT”) ordered the intelligence services to disclose their arrangements for intelligence sharing in the course of the proceedings brought by the applicants in the third of the joined cases (“the Liberty proceedings” – see paragraphs 28-60 below). Acquisition of communications data from CSPs 21.     Chapter II of RIPA and the accompanying Acquisition of Communications Data Code of Practice governed the process by which certain public authorities could request communications data from CSPs (see paragraphs 117-121 below). The United States 22.     The National Security Agency (“NSA”) acknowledged the existence of two operations called PRISM and Upstream. PRISM 23.     PRISM was a programme through which the United States’ Government obtained intelligence material (such as communications) from Internet Service Providers (“ISPs”). Access under PRISM was specific and targeted (as opposed to a broad “data mining” capability). The United States’ administration stated that the programme was regulated under the Foreign Intelligence Surveillance Act (“FISA”), and applications for access to material through PRISM had to be approved by the Foreign Intelligence Surveillance Court (“FISC”). 24.     Documents from the NSA leaked by Edward Snowden suggested that GCHQ had access to PRISM since July 2010 and used it to generate intelligence reports. GCHQ acknowledged that it acquired information from the United States’ which had been obtained via PRISM. Upstream 25.     According to the leaked documents, the Upstream programme allowed the collection of content and communications data from fibre optic cables and infrastructure owned by United States’ CSPs. This programme had broad access to global data, in particular that of non-US citizens, which could then be collected, stored and searched using keywords (for further details, see paragraphs 261-264 below). DOMESTIC PROCEEDINGS IN THE FIRST AND SECOND OF THE JOINED CASES 26.     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 1994 (“the   ISA” – see paragraphs 108 and 110 below), section 1 of the Security Services Act 1989 (“the SSA” – see paragraph 106 below) and section 8 of RIPA (see paragraph 66 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, but that the applicants’ complaints could have been raised before the IPT. The IPT was a specialised Tribunal established under RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act, and it was endowed with exclusive jurisdiction to investigate any complaint that a person’s communications had been intercepted and, where interception had occurred, to examine the authority for such interception (see paragraphs 122-133 below). However, no further action was taken by these applicants. 27.     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. DOMESTIC PROCEEDINGS IN THE THIRD OF THE JOINED CASES 28 .     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 (hereinafter “the Liberty proceedings”). 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 United States 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”). 29.     On 14 February 2014, the IPT ordered that the ten cases be joined. It subsequently appointed Counsel to the Tribunal (see paragraph 132 below), whose function was to assist the IPT in whatever way it directed, including by making representations on issues in relation to which not all parties could be represented (for example, for reasons of national security). 30.     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. The hearing 31 .     The IPT, composed of two High Court Judges, 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 intercept material. 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. 32.     The request for a closed hearing was granted pursuant to Rule 9 of the IPT’s Rules of Procedure (see paragraph 129 below). On 10   September 2014 a closed hearing took place at which 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. 33 .     In the closed hearing, the IPT examined the internal (“below the waterline”) arrangements regulating the conduct and practice of the intelligence services.     On 9 October 2014 it 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. 34.     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. 35.     The respondents subsequently amended and amplified the disclosed material. 36 .     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).” The IPT’s first judgment of 5 December 2014 37.     The IPT issued its first judgment on 5 December 2014. The judgment addressed the arrangements then in place for intercepting communications and receiving communications intercepted by foreign intelligence services. The PRISM issue 38 .     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, the authorities involved in processing communications received from foreign intelligence services had to comply with the requirements of Article 8, particularly in relation to their storage, sharing, retention and destruction. In the IPT’s view, following 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, 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. 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). 39.     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.” 40 .     The IPT noted that arrangements for information sharing were provided for in the statutory framework set out in the Security Service Act 1989 (see paragraphs 105-106 below) and the Intelligence Services Act 1994 (see paragraphs 107-110 below). It further referred to a witness statement made in the above-mentioned Liberty proceedings by Charles Farr, the Director-General of the Office for Security and Counter Terrorism (“OSCT”) at the Home Office, which 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. 41 .     The IPT 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 (“the ISC”) and the independent Interception of Communications Commissioner (“the IC 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. 42 .     Having considered the “below the waterline” arrangements, the IPT was satisfied that the 9 October disclosure (as subsequently amended – see paragraphs 33 and 36 above) provided a clear and accurate summary of that part of the evidence given in the closed hearing, 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 the preconditions for requesting information from the Government of the United States of America were clear: there had to exist either a section 8(1) warrant, or 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 86 below). Any request pursuant to PRISM or Upstream in respect of intercept or communications data was therefore 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. 43.     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).” 44.     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 Bykov - see paragraph 37 above) accessible with sufficient clarity to give the individual adequate protection against arbitrary interference.” 45 .     Finally, the IPT addressed an argument raised by Amnesty International only; namely, that the United Kingdom owed a positive obligation under Article 8 of the Convention to prevent or forestall the United States from intercepting communications, including an obligation not to acquiesce in such interception by receiving its product. However, th