BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
71. According to section 20 of RIPA, “related communications data”, in
relation to a communication intercepted in the course of its transmission by
means of a postal service or telecommunication system, meant “so much of
any communications data as was obtained by, or in connection with, the
interception”; and related “to the communication or to the sender or
recipient, or intended recipient, of the communication”.
2. Warrants: section 8(4)
(a) Authorisation
72. “Bulk interception” of communications was carried out pursuant to a
section 8(4) warrant. Section 8(4) and (5) of RIPA allowed the Secretary of
State to issue a warrant for “the interception of external communications in
the course of their transmission by means of a telecommunication system”.
73. At the time of issuing a section 8(4) warrant, the Secretary of State
was also required to issue a certificate setting out a description of the
intercepted material which he or she considered it necessary to examine, and
stating that he or she considered the examination of that material to be
necessary for the reasons set out in section 5(3) (that is, that it was
necessary in the interests of national security, for the purpose of preventing
or detecting serious crime, or for safeguarding the economic well-being of
the United Kingdom – so far as those interests are also relevant to the
interests of national security; see s. 3.5 and 6.11 of the IC Code at
paragraph 96 below).
(b) “External” communications
74. Section 20 defined “external communication” as “a communication
sent or received outside the British Islands”.
75. In the course of the Liberty proceedings, Charles Farr, the Director
General of the OSCT, indicated that two people in the United Kingdom who
emailed each other were engaging in “internal communication” even if the
email service was housed on a server in the United States of America;
however, that communication could nevertheless be intercepted as a
“by-catch” of a warrant targeting external communications. On the other
hand, a person in the United Kingdom who communicated with a search
engine overseas was engaging in an external communication, as was a
person in the United Kingdom who posted a public message (such as a
tweet or Facebook status update), unless all the recipients of that message
were in the British Islands.
76. Giving evidence to the ISC in October 2014, the Secretary of State
for the Foreign and Commonwealth considered that:
“In terms of an email, if one or both of the sender or recipient is overseas then this
would be an external communication.
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