BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
(d) “bulk interception” as targeted and non-targeted interception of electronic
communications (and related communications data) circulating on bearers by means
of strong selectors and selectors;
(e) “bearers” as carriers (primarily sub-marine fibre optic cables) of electronic
communications;
(f) “strong selectors” as specific (personal) identifiers relating to an identified or
identifiable target, permitting the acquisition of electronic communications to, from,
or about the target;
(g) “selectors” as non-specific (non-personal) identifiers;
(h) a “to” or “from” communication as an electronic communication for which
the sender or a recipient is a user of the tasked selector;
(i) an “about” communication as one in which the tasked selector is referenced
within the acquired electronic communication, but the target is not necessarily a
participant in the communication;
(j) “external communication” as communication sent or received outside the
national territory6;
(k) “communication” as “anything comprising speech, music, sounds, visual
images or data of any description and signals serving either for the imparting of
anything between persons, between a person and a thing or between things, or for the
actuation or control of any apparatus”7;
(l) “below the waterline arrangements” as secret, internal rules and practices of
the intercepting authority.
B. Biased methodology
4. The Court’s methodological approach to this case is regrettable, for
two main reasons. First, the Court was willing to decide a case of this
importance “on the basis of limited information about the manner in which
those [the Contracting States’ bulk interception] regimes operate”8. For
example, the Government did not indicate the number or the degree of
precision of the selectors they had used, the number of bearers intercepted
or how exactly those bearers were selected, or the kind of intelligence
reports that were being generated in respect of the related communications
data, and yet the Court did not insist on obtaining that crucial information.
The Investigatory Powers Tribunal (IPT) examined “below the waterline”
arrangements9, the Interception of Communications Commissioner
(IC Commissioner) had access to “closed material”10 and even the
Independent Reviewer of Terrorism legislation examined a “great deal of
closed material”11, but the Court did not, and could not. The Court was
This concept is similar to that of section 20 of RIPA.
This concept is enshrined in section 81 of RIPA, which can also be used by the Court.
8 Paragraph 323 of this judgment.
9 Paragraphs 33 and 50 of this judgment.
10 Paragraph 136 of this judgment.
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