BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
that they did. However, it considered that as the legal framework had
developed piecemeal, it was unnecessarily complicated. The ISC therefore
had serious concerns about the resulting lack of transparency, which was not
in the public interest. Consequently, its key recommendation was that the
existing legal framework be replaced by a new Act of Parliament which
clearly set out the intrusive powers available to the intelligence services, the
purposes for which they could use them, and the authorisation required
before they could do so.
144. With regard to GCHQ’s bulk interception capability, the inquiry
showed that the intelligence services did not have the legal authority, the
resources, the technical capability, or the desire to intercept every
communication of British citizens, or of the Internet as a whole. GCHQ
were not, therefore, reading the emails of everyone in the United Kingdom.
On the contrary, GCHQ’s bulk interception systems operated on a very
small percentage of the bearers that made up the Internet and the ISC was
satisfied that GCHQ applied levels of filtering and selection such that only a
certain amount of the material on those bearers was collected. Further
targeted searches ensured that only those items believed to be of the highest
intelligence value were ever presented for analysts to examine, with the
consequence that only a tiny fraction of those collected were ever seen by
human eyes.
145. In respect of Internet communications, the ISC considered that the
distinction between “internal” and “external” communications was
confusing and lacked transparency. It therefore suggested that the
Government publish an explanation of which Internet communications fell
under which category. Nevertheless, the inquiry had established that bulk
interception could not be used to target the communications of an individual
in the United Kingdom without a specific authorisation, signed by a
Secretary of State, naming that individual.
146. The ISC observed that the section 8(4) warrant was very brief. In so
far as the accompanying certificate set out the categories of communications
which might be examined, those categories were expressed in very general
terms (for example, “material providing intelligence on terrorism (as
defined by the Terrorism Act 2000 (as amended)), including, but not limited
to, terrorist organisations, terrorists, active sympathisers, attack planning,
fund-raising”). Given that the certificate was so generic, the ISC questioned
whether it needed to be secret or whether, in the interests of transparency, it
could be published.
147. Although the section 8(4) certificate set out the general categories
of information which could be examined, the ISC found that in practice it
was the selection of the bearers and the application of simple selectors and
search criteria which determined what communications were examined. The
ISC had therefore sought assurances that these were subject to scrutiny and
review by Ministers and/or the Commissioners. However, the evidence
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