BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
intrusive means (see paragraph 3.6 of the IC Code at paragraph 96 above).
In particular, the size and scope of the interference had to be balanced
against what was sought to be achieved; an explanation had to be given of
how and why the methods would cause the least possible intrusion on the
subject and others; consideration had to be given as to whether the activity
was an appropriate way of achieving the necessary result, having considered
all reasonable alternatives; and, as far as reasonably practicable, evidence
had to be given of other methods considered but assessed as insufficient to
fulfil operational objectives (see paragraph 3.7 of the IC Code at paragraph
96 above).
380. Although the application for a section 8(4) warrant had to include
“a description of the communications to be intercepted” and “details of the
Communications Service Provider(s)”, the Government confirmed at the
hearing that the warrant did not specify particular bearers, because there
would be “serious impracticalities and difficulties” if that were to be a
requirement. Nevertheless, there had to be a proper description of what the
interception would involve and details of the “sorts of bearers” that would
be intercepted. This information informed the Secretary of State’s
assessment of the necessity and proportionality of the conduct described in
the application. Furthermore, the Government confirmed in their
submissions to the Grand Chamber that the IC Commissioner was briefed
regularly by GCHQ about the basis on which bearers were selected for
interception (see paragraph 290 above).
381. The application for a section 8(4) warrant also did not have to
include an indication of the categories of selectors to be employed. As a
consequence, there was no possibility for their necessity and proportionality
to be assessed at the authorisation stage, although the choice of selectors
was thereafter subject to independent supervision. In their submissions
before the Grand Chamber the Government confirmed that whenever a new
selector was added to the system, the analyst adding it had to complete a
written record, explaining why it was necessary and proportionate to apply
the selector for the purposes within the Secretary of State’s certificate. This
was done by the selection of text from a drop down menu, followed by the
addition, by the analyst, of free text explaining why it was necessary and
proportionate to make the search. Furthermore, the use of selectors had to be
recorded in an approved location that enabled them to be audited; created a
searchable record of selectors in use; and enabled oversight by the IC
Commissioner (see paragraphs 291-292 above). The choice of selectors was
therefore subject to oversight by the IC Commissioner and in his 2016
annual report he “was impressed by the quality of the statements” prepared
by analysts explaining the necessity and proportionality of adding a new
selector (see paragraph 177 above).
382. Given that the choice of selectors and query terms determined
which communications would be eligible for examination by an analyst, the
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