BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
II. THE RELEVANT
SCHEMES
INTERNET
SECRET
SURVEILLANCE
14. Internet communications are primarily carried over international
sub-marine fibre optic cables operated by CSPs. Each cable may carry
several “bearers”, and there are approximately 100,000 of these bearers
joining up the global Internet. A single communication over the Internet is
divided into “packets” (units of data) which may be transmitted separately
across multiple bearers. These packets will travel via a combination of the
quickest and cheapest paths. Consequently, some or all of the packets of any
particular communication sent from one person to another, whether within
the United Kingdom or across borders, may be routed through one or more
other countries if that is the optimum path for the CSPs involved.
A. The United Kingdom
1. Bulk interception
15. The Edward Snowden revelations made in 2013 indicated that
Government Communications Headquarters (“GCHQ”, being one of the
United Kingdom intelligence services) was running an operation,
codenamed “TEMPORA”, which allowed it to tap into and store huge
volumes of data drawn from bearers. The United Kingdom authorities
neither confirmed nor denied the existence of an operation codenamed
TEMPORA.
16. However, according to the March 2015 Report of the Intelligence
and Security Committee of Parliament (“the ISC report” – see
paragraphs 142-149 below), GCHQ was operating two major processing
systems for the bulk interception of communications.
17. The first of the two processing systems referred to in the ISC report
was targeted at a very small percentage of bearers. As communications
flowed across the targeted bearers, the system compared the traffic against a
list of “simple selectors”. These were specific identifiers (for example, an
email address) relating to a known target. Any communications which
matched the simple selectors were collected; those that did not were
automatically discarded. Analysts then carried out a “triage process” in
relation to collected communications to determine which were of the highest
intelligence value and should therefore be opened and read. In practice, only
a very small proportion of the items collected under this process were
opened and read by analysts. According to the ISC report, GCHQ did not
have the capacity to read all communications.
18. The second processing system was targeted at an even smaller
number of bearers (a subset of those accessed by the process described in
the paragraph above) which were deliberately targeted as those most likely
to carry communications of intelligence interest. This second system had
4