Privacy International v Investigatory Powers Tribunal

The Claimant applies for judicial review of the judgment of the Investigatory Powers Tribunal (“the Tribunal”) dated 12 February 2016. It invites the court to quash the judgment and to grant relief in the form of a declaration as to the scope of section 5 of the Intelligence Services Act 1994 (“the 1994 Act”). The question raised in the claim relates particularly to computer network exploitation (“CNE”), colloquially known as computer hacking. The question posed in the Statement of Facts and Grounds is:

“Does section 5 of [the 1994 Act] permit the issue of a ‘thematic’ computer hacking warrant authorising acts in respect of an entire class of people or an entire class of such acts?”

We heard submissions from Mr Ben Jaffey QC (with Mr Tom Cleaver) on behalf of the Claimant and Sir James Eadie QC (with Mr Richard O’Brien) on behalf of the Interested Parties. We repeat the thanks that we gave at the hearing for their excellent oral and written advocacy.

By section 1(1) of the Security Service Act 1989, Parliament acknowledged the existence of the Security Service. At the same time, its functions were placed on a statutory footing as being the protection of national security, the safeguarding of the economic well-being of the United Kingdom, and the support of law enforcement agencies in the prevention and detection of serious crime (section 1(3)).

CNE is a set of techniques through which an individual or organisation gains covert and remote access to equipment (including both networked and mobile computer devices) typically with a view to obtaining information from it. CNE can be a critical tool in investigations into the full range of threats to the United Kingdom such as terrorism, serious and organised crime, and other national security threats. As the Tribunal observed at para 3 of their judgment: “[t]he particular significance of the use of CNE is that it addresses difficulties for the Intelligence Agencies caused by the