BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
appeals; and, strangely enough, that the Secretary of State had the power to
adopt the IPT’s procedural rules, which in practice meant that the
supervised entity had the power to determine the rules that governed the
supervisory body151.
B. Exchange of intercept data with foreign intelligence services
50. There is no express statutory framework analogous to RIPA
governing the authority upon which the British Government can use
intercept data from a foreign country. Only in January 2016 did Chapter 12
of the IC Code set the framework for such exchange152. Under paragraph
12.5 of the IC Code, and its accompanying footnote, requests for intercepted
communications and related communications data from a foreign
intelligence service could be made for “material to, from and about specific
selectors”153. The NSA abandoned the “about” collection in April 2017,
because it could not be conducted lawfully due to its inadmissible massive
overreach154. Yet the Court’s surprising willingness to accept the “collect it
all” policy of the respondent Government155 goes beyond even the NSA
playbook, admitting not only “about” collection requests, but even requests
for material other than in relation to specific selectors156.
51. According to the Court, the transfer of bulk material to foreign
intelligence partners should be subject to “independent control”157, but the
receipt of bulk material collected by foreign intelligence authorities should
not be158. If the safeguards are inadequate in relation to direct surveillance
by the United Kingdom’s intercepting authorities, they ought to be
considered as inadequate also for indirect surveillance by them, resulting
from intelligence sharing of third-party intercept material; even more so
where such material is collected by a third party not bound by the
Convention. When the danger of material collected and stored in a
non-Convention compliant manner is higher, and therefore independent
oversight is most needed, the Court has renounced this safeguard, without
Section 69(1) of RIPA.
The respondent Government said that, “even prior to the issue of chapter 12 of the Code,
it was ‘accessible’ as a result of the Disclosure”, referring to the October 2014 disclosure
(see their Observations before the Grand Chamber of 2 May 2019, p. 49). This shows that
even the Government admit that prior to that moment the law was not accessible.
153 Paragraph 116 of this judgment.
154 Paragraph 263 of this judgment.
155 In the words of the respondent Government in the Grand Chamber hearing of 10 July
2019: “so to the extent that the sting of the questions is have you got lots of data, even after
the end of your filtering process, the answer to that question is ‘yes’ and a jolly good thing
too, we submit.”
156 Paragraphs 502 and 503 of this judgment.
157 Paragraph 362 of this judgment.
158 Paragraph 513 of this judgment.
151
152
196