BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
before a particular communication could be accessed by an authorised
person within the intercepting agency, the person had to explain why it was
necessary for one of the reasons set out in the accompanying certificate, and
why it was proportionate in the particular circumstances, having regard to
whether the information could reasonably have been obtained by less
intrusive means (see paragraph 96 above).
386. The Secretary of State’s certificate was issued when he or she
granted the warrant and was intended to ensure that a selection process was
applied to the intercepted material so that only material described in the
certificate was made available for human examination (see paragraphs 6.3
and 6.14 of the IC Code at paragraph 96 above). Although the certificate
played an important role in regulating access to intercept material, the
reports of the ISC and the Independent Reviewer of Terrorism Legislation
both criticised the fact that the material identified in these certificates was
couched in very general terms (for example, “material providing
intelligence on terrorism as defined in the Terrorism Act 2000 (as
amended)”) (see paragraph 342 of the Chamber judgment and
paragraphs 146 and 155 above). The Court agrees with the Chamber that
this was a deficiency in the system of safeguards available under the
section 8(4) regime.
387. Nonetheless, according to the ISC, although the certificate set out
the general categories of information which could be examined, in practice
it was the selection of the bearers, the application of simple selectors and
initial search criteria, and then complex searches which determined what
communications were examined (see paragraphs 146-147 above). In other
words, while the certificates regulated the analyst’s selection of material
from a computer generated index, it was the choice of bearers and
selectors/search terms which determined which communications were on
that index (and therefore eligible for examination) in the first place.
However, the Court has already held that both the failure to identify the
categories of selectors in the application for a warrant and the absence of
prior internal authorisation of those strong selectors linked to an identifiable
individual represented deficiencies in the section 8(4) regime (see
paragraph 382 above). These deficiencies would have been exacerbated by
the general nature of the Secretary of State’s certificate. Not only was there
no prior independent authorisation of the categories of selectors used to
generate the index, and no internal authorisation of those strong selectors
linked to an identifiable individual, but the certificate regulating access to
material on that index was drafted in insufficiently precise terms to provide
any meaningful restriction.
388. Paragraph 7.16 of the IC Code further required an analyst seeking
access to material on the index to indicate any circumstances likely to give
rise to a degree of collateral infringement of privacy, together with the
measures taken to reduce the extent of that intrusion (see paragraph 96
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