BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
363. For the reasons identified at paragraph 342 above, the Court is not
persuaded that the acquisition of related communications data through bulk
interception is necessarily less intrusive than the acquisition of content. It
therefore considers that the interception, retention and searching of related
communications data should be analysed by reference to the same
safeguards as those applicable to content.
364. That being said, while the interception of related communications
data will normally be authorised at the same time the interception of content
is authorised, once obtained they may be treated differently by the
intelligence services (see, for example, paragraphs 153-154 above). In view
of the different character of related communications data and the different
ways in which they are used by the intelligence services, as long as the
aforementioned safeguards are in place, the Court is of the opinion that the
legal provisions governing their treatment may not necessarily have to be
identical in every respect to those governing the treatment of content.
(iv) The Court’s assessment of the case at hand
(1) Preliminary remarks
365. At the relevant time bulk interception had a legal basis in Chapter I
of RIPA. Moreover, the Court is satisfied that the said regime pursued the
legitimate aims of protecting national security, preventing disorder and
crime and protecting the rights and freedoms of others. Therefore, following
the approach outlined in paragraph 334 above, it remains to be considered
whether the domestic law was accessible and contained adequate and
effective safeguards and guarantees to meet the requirements of
“foreseeability��� and “necessity in a democratic society”.
366. The relevant legislative provisions governing the operation of the
bulk interception regime were undoubtedly complex; indeed, most of the
reports into the United Kingdom’s secret surveillance regimes criticised
their lack of clarity (see paragraphs 143, 152 and 157 above). However,
those provisions were elucidated in the accompanying Interception of
Communications Code of Practice (“the IC Code” – see paragraph 96
above). Paragraph 6.4 of the IC Code made it clear that bulk interception
was taking place and provided further details of how this particular
surveillance regime operated in practice (see paragraph 96 above). The IC
Code is a public document approved by both Houses of Parliament, which is
published by the Government online and in print version, and which has to
be taken into account both by persons exercising interception duties and the
courts (see paragraphs 93-94 above). As a consequence, this Court has
accepted that its provisions could be taken into account in assessing the
foreseeability of RIPA (see Kennedy, cited above, § 157). Accordingly, the
Court would accept that domestic law was adequately “accessible”.
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