BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
communications acquired before that date which were “about” a strong
selector might have continued to be stored by the NSA for some time
thereafter.
470. Consequently, the Court would accept that at the relevant time (that
is, 7 November 2017) the applicants in the first and third of the joined cases
were potentially at risk of having had at least some of their communications
intercepted and retained under Upstream.
471. Nevertheless, the applicants could still only be victims for the
purposes of the intelligence sharing regime if they were also potentially at
risk of having their communications requested by GCHQ, and such a
request could only have been made where a warrant was already in place for
the material sought. However, as the Court has already noted, the fact that
the communications of at least two of the applicants in the third of the
joined cases were retained by GCHQ suggests that at least some of their
communications were covered by a section 8(4) warrant. Consequently, the
Court would accept that the applicants in the first and third of the joined
cases were potentially at risk of also having their communications requested
by GCHQ.
472. Accordingly, it finds that the applicants in the first and third of the
joined cases can claim to be victims in respect of their complaints about the
intelligence sharing regime. The Government’s preliminary objection is
therefore dismissed.
3. The merits
(a) The Chamber judgment
473. In considering the Article 8 compliance of the regime governing the
receipt of intercept material from foreign intelligence services such as the
NSA, the Chamber applied a modified version of the six minimum
safeguards (see paragraph 275). Since the first two requirements could not
apply to the act of requesting intercept material from foreign governments,
the Chamber instead asked whether the circumstances in which intercept
could be requested was circumscribed sufficiently to prevent States from
using the power to circumvent domestic law or their Convention
obligations. It then applied the final four requirements to the treatment of
intercept material once it had been obtained by the United Kingdom
intelligence services.
474. The Chamber considered that the domestic law, together with the
clarifications brought by the amendment of the IC Code, indicated with
sufficient clarity the procedure for requesting either interception or the
conveyance of intercept material from foreign intelligence services.
Moreover, the Chamber found no evidence of any significant shortcomings
in the application and operation of the regime. It therefore held, by a
majority, that there had been no violation of Article 8 of the Convention.
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