BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
two stages: first, the initial application of a set of “processing rules”
designed to discard material least likely to be of value; and secondly, the
application of complex queries to the selected material in order to draw out
those likely to be of the highest intelligence value. Those searches generated
an index, and only items on that index could be examined by analysts. All
communications which were not on the index had to be discarded.
19. The legal framework for bulk interception in force at the relevant
time is set out in detail in the “relevant domestic law” section below. In
brief, section 8(4) of the Regulation of Investigatory Powers Act 2000
(“RIPA” – see paragraph 72 below) allowed the Secretary of State to issue
warrants for the “interception of external communications”, and pursuant to
section 16 of RIPA (see paragraphs 84-92 below) intercepted material could
not be selected to be read, looked at or listened to, “according to a factor
which is referable to an individual who is known to be for the time being in
the British Islands”.
2. Intelligence sharing
20. Chapter 12 of the Interception of Communications Code of Practice
(“the IC Code” – see paragraph 116 below) set out the circumstances in
which the United Kingdom intelligence services could request intelligence
from foreign intelligence services, and the procedures which had to be
followed for making such a request. Chapter 12 was added to the IC Code
after the Investigatory Powers Tribunal (“the IPT”) ordered the intelligence
services to disclose their arrangements for intelligence sharing in the course
of the proceedings brought by the applicants in the third of the joined cases
(“the Liberty proceedings” – see paragraphs 28-60 below).
3. Acquisition of communications data from CSPs
21. Chapter II of RIPA and the accompanying Acquisition of
Communications Data Code of Practice governed the process by which
certain public authorities could request communications data from CSPs
(see paragraphs 117-121 below).
B. The United States
22. The National Security Agency (“NSA”) acknowledged the existence
of two operations called PRISM and Upstream.
1. PRISM
23. PRISM was a programme through which the United States’
Government obtained intelligence material (such as communications) from
Internet Service Providers (“ISPs”). Access under PRISM was specific and
targeted (as opposed to a broad “data mining” capability). The United
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