BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
paragraphs 413-415 above, the Grand Chamber agrees with that finding.
Therefore, as the Chamber observed, the applicants 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 Roman Zakharov, cited above,
§ 171). This would only be the case if they were potentially at risk both of
having their communications intercepted by a foreign intelligence service
and of having those communications requested by GCHQ.
468. The Government, focusing on the receipt of intelligence from the
United States, argued that the applicants were not potentially at risk of
having their communications intercepted under Upstream, as it was a
targeted interception regime. However, according to the NSA, prior to
April 2017 Upstream acquired communications to, from or about a
section 702 selector (such as an email address); and only from April 2017
onwards it acquired communications to or from a section 702 selector (see
paragraph 263 above). Given that section 702 selectors were applied to all
communications flowing over specified cables, it would appear that
Upstream was not so very different to the section 8(4) regime, which also
intercepted all communications flowing over a number of cables and filtered
them using selectors. The only apparent difference between the two regimes
was that from April 2017 the NSA could only search for communications to
or from a strong selector, while GCHQ retained the ability to perform
searches by way of complex queries.
469. In the course of the Liberty proceedings the IPT confirmed that at
least two of the applicants in the third of the joined cases had not only had
some of their communications intercepted pursuant to a section 8(4)
warrant, but had also had those communications lawfully and
proportionately retained pursuant to that warrant (see paragraphs 58-60
above). In order to have been retained lawfully those communications must
have matched either a “strong selector” (pertaining either to the applicants
or someone they were in contact with) or a “complex query”. The Court
would accept that if some of the applicants’ communications matched a
“strong selector” used by GCHQ, they would also have been potentially at
risk of being intercepted and retained by the NSA under Upstream on the
basis that they were “to” or “from” a section 702 selector. Even if they did
not match a strong selector, some of the applicants’ communications must
nevertheless have been of intelligence interest. Prior to April 2017 they
could also have been intercepted and retained under Upstream if they were
“about” a section 702 selector. If this was the case, at the relevant time (that
is, 7 November 2017) those communications may still have been held by the
NSA since, following the change in policy in April 2017, it only indicated
that it would delete previously acquired Upstream Internet communications
“as soon as practicable” (see paragraph 263 above). Therefore,
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