BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
354. Taking into account the characteristics of bulk interception (see
paragraphs 344-345 above), the large number of selectors employed and the
inherent need for flexibility in the choice of selectors, which in practice may
be expressed as technical combinations of numbers or letters, the Court
would accept that the inclusion of all selectors in the authorisation may not
be feasible in practice. Nevertheless, given that the choice of selectors and
query terms determines which communications will be eligible for
examination by an analyst, the authorisation should at the very least identify
the types or categories of selectors to be used.
355. Moreover, enhanced safeguards should be in place when strong
selectors linked to identifiable individuals are employed by the intelligence
services. The use of every such selector must be justified – with regard to
the principles of necessity and proportionality – by the intelligence services
and that justification should be scrupulously recorded and be subject to a
process of prior internal authorisation providing for separate and objective
verification of whether the justification conforms to the aforementioned
principles.
356. Each stage of the bulk interception process – including the initial
authorisation and any subsequent renewals, the selection of bearers, the
choice and application of selectors and query terms, and the use, storage,
onward transmission and deletion of the intercept material – should also be
subject to supervision by an independent authority and that supervision
should be sufficiently robust to keep the “interference” to what is
“necessary in a democratic society” (see Roman Zakharov, cited above,
§ 232; see also Klass and Other, cited above, §§ 49, 50 and 59; Weber and
Saravia, cited above, § 106 and Kennedy, cited above, §§ 153 and 154). In
particular, the supervising body should be in a position to assess the
necessity and proportionality of the action being taken, having due regard to
the corresponding level of intrusion into the Convention rights of the
persons likely to be affected. In order to facilitate this supervision, detailed
records should be kept by the intelligence services at each stage of the
process.
357. Finally, an effective remedy should be available to anyone who
suspects that his or her communications have been intercepted by the
intelligence services, either to challenge the lawfulness of the suspected
interception or the Convention compliance of the interception regime. In the
targeted interception context, the Court has repeatedly found the subsequent
notification of surveillance measures to be a relevant factor in assessing the
effectiveness of remedies before the courts and hence the existence of
effective safeguards against the abuse of surveillance powers. However, it
has acknowledged that notification is not necessary if the system of
domestic remedies permits any person who suspects that his or her
communications are being or have been intercepted to apply to the courts; in
other words, where the courts’ jurisdiction does not depend on notification
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