BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
communications by reference to such factors. If the request was not for
specific selectors, any communications subsequently obtained could not be
examined according to a factor referable to a person known to be in the
British Islands unless the Secretary of State had approved the examination
of those communications (see paragraph 116 above). In other words, the
intelligence services either requested intelligence relating to an individual
for whom the Secretary of State had already considered the necessity and
proportionality of obtaining his or her communications; or the section 16
safeguard was applicable to the material obtained. As no request has yet
been made without a warrant, it would seem that, to date, all requests have
fallen into the first category.
510. Therefore, the Court considers that the United Kingdom had in
place adequate safeguards for the examination, use and storage of the
content and communications data received from intelligence partners; for
the onward transmission of this material; and for its erasure and destruction.
511. Finally, the Court observes that a further layer of protection was
provided by the IC Commissioner and the IPT (see paragraph 41 above).
The IC Commissioner had oversight of the intelligence sharing regime:
paragraph 12.7 of the IC Code (see paragraph 116 above) required him to be
notified of all requests made in the absence of a warrant, and he already
supervised the granting of warrants and the storage of material by the
intelligence services.
512. In addition to the oversight of the IC Commissioner, the IPT
provided ex post facto review of the intelligence sharing regime. As can be
seen from the Liberty proceedings, it was open to anyone wishing to make
either a specific or general complaint about the intelligence sharing regime
to complain to the IPT; and, in response, the IPT was able to examine both
the “above the waterline” and “below the waterline” arrangements in order
to assess the Convention compliance of the regime.
513. Consequently, the Court considers that the regime for requesting
and receiving intercept material was compatible with Article 8 of the
Convention. There existed clear detailed rules which gave citizens an
adequate indication of the circumstances in which and the conditions on
which the authorities were empowered to make a request to a foreign
intelligence service; domestic law contained effective guarantees against the
use of such requests to circumvent domestic law and/or the United
Kingdom’s obligations under the Convention; the United Kingdom had in
place adequate safeguards for the examination, use, storage, onward
transmission, erasure and destruction of the material; and the regime was
subject to independent oversight by the IC Commissioner and there was a
possibility for ex post facto review by the IPT.
514. Accordingly, there has been no violation of Article 8 of the
Convention.
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