BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
remedies were available at the national level). In particular, they argued that
the applicants had put forward no basis on which they were at realistic risk
either of having their communications intercepted under PRISM or
Upstream, or of having their communications requested by the United
Kingdom intelligence services. In addition, they submitted that the
applicants had available to them an effective domestic remedy to discover
whether they were the subject of unlawful intelligence sharing.
(a) The Chamber judgment
464. As the Chamber accepted that the IPT had afforded the applicants
an effective remedy for their Convention complaint, it considered that they
could only claim to be “victims” on account of the mere existence of the
intelligence sharing regime if they were able to show that they were
potentially at risk of having their communications obtained by the United
Kingdom authorities through a request to a foreign intelligence service (see
paragraphs 392-393 of the Chamber judgment, referring to Roman
Zakharov, cited above, § 171).
465. On the basis of the information submitted to it, the Chamber found
that the applicants were potentially at risk both of having their
communications obtained by a foreign intelligence service, and requested
from a foreign intelligence service by the United Kingdom authorities (see
paragraph 395 of the Chamber judgment). Although they could only have
had their communications requested if there was either an Article 8(1)
or 8(4) warrant in place which covered their communications, it was clear
from the Liberty proceedings that at least two of the applicants in the third
of the joined cases had their communications lawfully intercepted and
selected for examination by the United Kingdom intelligence services under
the section 8(4) regime. While the Chamber found no reason to believe that
these applicants were themselves of interest to the intelligence services, it
observed that their communications could have been obtained lawfully
under the section 8(4) regime if, as they claimed, they were in contact with
persons who were. Similarly, their communications could have been
requested lawfully from a third country under the intelligence sharing
regime if they were in contact with an individual who was the subject of a
request.
466. As Upstream functioned in a similar manner to the section 8(4)
regime, the Chamber also accepted that the applicants’ communications
could potentially have been obtained by the NSA.
(b) The Court’s assessment
467. The applicants have not challenged the Chamber’s finding that the
IPT offered an effective domestic remedy for Convention complaints about
the operation of a surveillance regime, and, for the reasons expounded in
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