Thread by @CoreyStoughton

Morning all. Court starts at 10 this morning with some housekeeping. Check back in around 10:30 for an update.

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Housekeeping over. Government forced to “unreservedly apologise” for blowing court deadlines before hearing. Court currently considering sanctioning Government.

We’re back: Court orders Government to pay @libertyhq’s costs as consequence of blowing pre-hearing deadlines. The theme of Govt thinking rules don’t apply to them, and the Court needing to remind that they do, guaranteed to resurface later today.

On to the merits: today’s argument is about the data retention provisions of the #SnoopersCharter, which allow Govt to order companies to store vast quantities of our communications data, so Govt can later access it for a broad set of reasons.

(Later hearings will focus on the rules for when Govt can access that data, when they can directly intercept bulk quantities of communications, when they can hack people’s devices, and other points.)

The heart of the matter: Liberty’s counsel Martin Chamberlain (of @brickcourt) tells court that the data the #SnoopersCharter allows Govt to retain “paint an intimate picture” of our private lives. Where we go. Who we know. What we do on internet.

BIG DEAL: The Government concedes in @libertyhq court challenge that parts of #Snoopers Charter violate human rights and must be amended. Specifically the lack of independent oversight and overbroad purposes for retaining our data.

Now debate is about whether & when these parts of #SnoopersCharter should be “disapplied.” Govt makes remarkable arg that court should do nothing and leave them to sort it out.

Court itself seems sceptical of this idea. Presiding judge asks “what about Joe” whose privacy is being violated right now and while we wait for Government to fix its now-admittedly illegal surveillance regime? 👏👏👏

Now we are on to the scandal of Govt’s delay in implementing legal requirement that “judicial commissioners” approve data retention notices. Maybe because no judge could in good faith approve a retention notice knowing they are unlawful? 🤔

The point is this: people’s rights are being violated. Courts are here to remedy to that. Can’t do nothing, can’t wait months or years. Govt doesn’t get a special pass. That’s the rule of law.

was actually prepared to give the Govt til July to get its act together but the Court is pressing back even on that, asking how Court can permit legal violations even for that short time (!!!!)

A lot of back and forth on this remedy issue - Court clearly considering a many options, some more aggressive than even @libertyhq was asking for. Excellent position to be in 👍

We’ve moved on now to other #SnoopersCharter issues that Govt has not conceded. First up: do we have any rights at all when Govt does surveillance for national security purposes? (Govt: no. @libertyhq: yes.)

The issue here is whether the EU privacy rights @libertyhq is trying to enforce disappear when Govt invokes national security, since EU law generally leave national security up to member states.

But as court itself just pointed out, EU law generally leaves income tax to member states, but if states taxed women more than men we’d probably say that violated EU equalities law. Invoking state interests is not a get-out-of-jail-free card for human rights.

This live tweet stream may go quiet for a while while @libertyhq’s counsel cites to the Court all of the “national security” cases where courts applied EU law. ✔️#winning

We are now debating the relationship between @libertyhq’s case and another case by our friends at @privacyint that also raises this question about whether there is a national security exemption to our privacy rights.

is urging the court to either find that it’s obviously the case that there’s no national security exemption or send this case to join @privacyint’s in the Court of Justice of EU so we can all sort it out together.

We are now breaking for lunch. Tune back in at 2pm if I have not exhausted your appetite for surveillance litigation minutiae

Hey ho! We are back in the High Court for more on @libertyhq‘s case against the Investigatory Powers Act. Talking now about how the Government is using public consultation about changes to #SnoopersCharter as cover for ignoring legal judgments.

Argument baton has been passed to Ben Jaffey of @BlackstoneChbrs (still arguing for the good guys - we are so hot we get 2 amazing counsel).

We are now discussing how any legit data retention regime has to require data sets remain in the EU so that EU privacy and security standards apply. (#SnoopersCharter does not require this. #FAIL)

This may seem arcane, but consider this: #SnoopersCharter requires Apple, Vodaphone, etc to retain shedloads of data about us that they’d otherwise delete. That makes us vulnerable. Why shouldn’t we demand the highest standards?

now arguing that when the Government orders companies to retain our data, they should be required to tell us about it unless it would seriously mess up a criminal investigation or put people in danger.

While we obviously have much more fundamental concerns about the #SnoopersCharter regime, a notice requirement is critical to ensure that once we have a regime with actual rules (wouldn’t that be nice?), people have the ability to test that the rules are being followed.

Plus, it is an irony of a surveillance regime lacking a notice requirement that terrorists or criminals facing charges are entitled to know their data was seized, but innocent people swept up in mass surveillance or bulk data collection are not.

Snap out of your post-lunch coma, guys! We are finally getting to the most critical part of @libertyhq’s challenge to #SnoopersCharter - the lack of a requirement of a specific link between the data the Government wants to get and a serious crime.

This is a core debate about modern surveillance. Government wants indiscriminate power to take data as long as their *reason* is fighting crime or natl security. @libertyhq says we should only have targeted surveillance - a link between the specific data and a specific problem.

Govt argues that despite the indiscriminate power #SnoopersCharter gives them, in practice they use their powers in a limited way. Court asks: why does that matter? Aren’t we here to consider whether the law itself goes too far! GOOD QUESTION!🔥🔥

counsel reminds the court that #SnoopersCharter allows mass surveillance for a whole lotta reasons beyond terrorism and serious crime - like taxation! Economic welfare! Public health! These have to GO.

Aaaand we are done for the day, folks. @libertyhq’s counsel rocked the house. Tune in tomorrow at 10am for live tweets of what I hope will be a full day of the court systematically dismantling the Government’s defense of the #SnoopersCharter’s data retention regime.