BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
because they were believed to be the most likely to carry external
communications of intelligence interest.
374. Paragraph 6.5 of the IC Code defined “external communications”
as communications which were either sent or received outside the British
Islands (see paragraph 96 above). Where both the sender and recipient were
within the British Islands, the communication was internal. Whether or not a
communication was “external” therefore depended on the geographic
location of the sender and recipient and not on the route the communication
took to its destination. Communications which crossed the United
Kingdom’s borders (international communications) could still be “internal”,
since a communication (or packets of a communication) both sent from and
received in the United Kingdom could nevertheless be routed through one
or more third countries.
375. The distinction between internal and external communications did
not, therefore, prevent the interception of internal communications
travelling across the United Kingdom’s borders, and in fact the “by-catch”
of such communications was expressly permitted by section 5(6) of RIPA,
which provided that the conduct authorised by an interception warrant
included the interception of communications not identified by the warrant if
necessary to do what was expressly authorised by the warrant (see
paragraph 68 above). In addition, the definition of “external” was itself
sufficiently broad to include cloud storage and the browsing and social
media activities of a person in the United Kingdom (see paragraphs 75 and
76 above). Nevertheless, as the Chamber acknowledged, the “external
communications” safeguard had a role to play at the macro level of selecting
the bearers for interception (see paragraph 337 of the Chamber judgment);
as the intercepting agency had to use its knowledge of the way in which
international communications were routed to identify those communications
bearers most likely to contain external communications of value to the
operation, the safeguard did, albeit to a limited extent, circumscribe the
categories of people liable to have their communications intercepted. It was
also relevant to the question of proportionality, since States might have less
intrusive measures available to them to obtain the communications of
persons within their territorial jurisdiction.
376. In light of the foregoing, the Court considers it clear that under the
section 8(4) regime international communications (that is, communications
crossing State borders) could be intercepted; and that the intelligence
services would only use the power to intercept those bearers most likely to
be carrying external communications of intelligence interest. In the bulk
interception context it is difficult, in the abstract, to imagine how the
circumstances in which an individual’s communications might be
intercepted could be further delimited. In any event, as neither the sender
nor the recipient of an electronic communication could control the route it
took to its destination, in practice any further restrictions on the choice of
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