WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
D. The Government’s preliminary submissions to the IPT
15. The Government made preliminary submissions to the IPT in which
they sought a “principled basis on which the claims generated by the Privacy
campaign can be addressed”. In the Government’s view, these complaints
raised no new issues of law but were instead designed for the purpose of
finding out whether the intelligence agencies in fact held information about
persons or organisations, or whether they had access to that material from the
United States’ National Security Agency (”NSA”). The operation of the
regime had been examined in detail in the Liberty proceedings and nothing
would be achieved by requiring individual examination of a potentially very
large number of cases.
16. Of the first ten claims before the IPT, five of the complainants were
resident abroad. The Government argued that these complainants were
outside the scope of Article 1 of the Convention and, as such, it would be
appropriate for the IPT to dispose of their Convention complaints at a
preliminary stage on that basis. While it was accepted, more generally, that
individuals of any nationality could bring complaints to the IPT, the
Government argued that the IPT was entitled to proceed on the basis that
unless an individual was present in the United Kingdom, there was no
jurisdiction to consider a complaint under the Convention concerning the
interception, obtaining or handling of communications by the Government
and/or intelligence agencies.
17. The Government further argued, inter alia, that the ten complainants
could not claim to be victims of a violation of the Convention because they
could not show that due to their personal situation they were potentially at
risk of being subject to secret interception measures.
18. The complainants contended that their claims required individual
consideration. They further contended that the IPT had jurisdiction over those
among them who were resident abroad; and that they all enjoyed “victim”
status under the Convention.
E. The IPT judgment
19. Prior to the hearing, the parties agreed that the NSA had a lawful basis
for targeted interception pursuant to section 702 of the Foreign Intelligence
Surveillance Act 1978 (as amended) (“FISA”), and to Executive
Order 12333, pursuant to which PRISM and “Upstream” were lawfully
sanctioned for “the targeting of persons reasonably believed to be located
outside the United States to acquire foreign intelligence information”. They
also agreed that in order to pursue their statutory objectives, the intelligence
agencies needed to share intelligence with foreign Governments. Moreover,
for the purpose of the hearing, any information supplied to the United
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