BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
417. At the same time, the treatment of communications data benefitted
in most part from the same safeguards as applied to content. Like the latter,
the former were subject to an automated filtering process in near-real time,
with a substantial proportion of them being instantly deleted at this stage;
and they were also subject to simple or complex queries in order to draw out
the material that was of potential intelligence value. Moreover, the selectors
used in respect of related communications data were subject to the same
safeguards as content; most notably, analysts had to complete a written
record explaining why each new selector added to the system was necessary
and proportionate, that record was subject to audit by the IC Commissioner,
selectors had to be removed if it was established that they were not being
used by their intended target, and there was a maximum time during which
selectors could remain in use before a review was necessary (see
paragraph 298 above).
418. Content and related communications data were also subject to
many of the same procedures for storage, access, examination and use, the
same precautions for communication to third parties, and the same
procedures for erasure and destruction. In this regard, both content and
related communications data were subject to the safeguards in section 15 of
RIPA; analysts wishing to access related communications data had to
complete an auditable record explaining why access was necessary and
proportionate; and no intelligence reporting could be made on the basis of
related communications data unless and until they had been examined.
419. There were, however, two principal ways in which the bulk
interception regime treated content and related communications data
differently: related communications data were excluded from the
section 16(2) safeguard, meaning that if an analyst wished to use a selector
referable to an individual known for the time being to be in the British
Islands, he or she was not required to have the use of that selector certified
as necessary and proportionate by the Secretary of State; and related
communications data which did not match either a strong selector or a
complex query were not destroyed immediately, but were instead stored for
a maximum period of up to several months (see paragraphs 296-298 above).
The Court will therefore examine whether domestic law clearly defined the
procedures to be followed for selecting related communications data for
examination, and the limits on the duration of the storage of related
communications data.
420. Under the section 8(4) regime, section 16(2) was the principal
statutory safeguard circumscribing the process of selecting intercept
material for examination. However, it was not the only safeguard. As
already noted at paragraph 417 above, all new selectors had to be justified
by analysts through the creation of a written record explaining why the
choice of selector was both necessary and proportionate (see
paragraphs 291-292 and 298 above); analysts wishing to examine related
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