BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
same model, and the different stages of the process will not necessarily be
discrete or followed in strict chronological order. Nevertheless, subject to
the aforementioned caveats, the Court considers that the stages of the bulk
interception process which fall to be considered can be described as follows:
(a) the interception and initial retention of communications and related
communications data (that is, the traffic data belonging to the
intercepted communications);
(b) the application of specific selectors to the retained
communications/related communications data;
(c) the
examination
of
selected
communications/related
communications data by analysts; and
(d) the subsequent retention of data and use of the “final product”,
including the sharing of data with third parties.
326. At what the Court has taken to be the first stage, electronic
communications (or “packets” of electronic communications) will be
intercepted in bulk by the intelligence services. These communications will
belong to a large number of individuals, many of whom will be of no
interest whatsoever to the intelligence services. Some communications of a
type unlikely to be of intelligence interest may be filtered out at this stage.
327. The initial searching, which is mostly automated, takes place at
what the Court has taken to be the second stage, when different types of
selectors, including “strong selectors” (such as an email address) and/or
complex queries are applied to the retained packets of communications and
related communications data. This may be the stage where the process
begins to target individuals through the use of strong selectors.
328. At what the Court has taken to be the third stage, intercept material
is examined for the first time by an analyst.
329. What the Court has taken to be the final stage is when the intercept
material is actually used by the intelligence services. This may involve the
creation of an intelligence report, the disseminating of the material to other
intelligence services within the intercepting State, or even the transmission
of material to foreign intelligence services.
330. The Court considers that Article 8 applies at each of the above
stages. While the initial interception followed by the immediate discarding
of parts of the communications does not constitute a particularly significant
interference, the degree of interference with individuals’ Article 8 rights
will increase as the bulk interception process progresses. In this regard, the
Court has clearly stated that even the mere storing of data relating to the
private life of an individual amounts to an interference within the meaning
of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A
no. 116), and that the need for safeguards will be all the greater where the
protection of personal data undergoing automatic processing is concerned
(see S. and Marper, cited above, § 103). The fact that the stored material is
in coded form, intelligible only with the use of computer technology and
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