BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
States’ administration stated that the programme was regulated under the
Foreign Intelligence Surveillance Act (“FISA”), and applications for access
to material through PRISM had to be approved by the Foreign Intelligence
Surveillance Court (“FISC”).
24. Documents from the NSA leaked by Edward Snowden suggested
that GCHQ had access to PRISM since July 2010 and used it to generate
intelligence reports. GCHQ acknowledged that it acquired information from
the United States’ which had been obtained via PRISM.
2. Upstream
25. According to the leaked documents, the Upstream programme
allowed the collection of content and communications data from fibre optic
cables and infrastructure owned by United States’ CSPs. This programme
had broad access to global data, in particular that of non-US citizens, which
could then be collected, stored and searched using keywords (for further
details, see paragraphs 261-264 below).
III. DOMESTIC PROCEEDINGS IN THE FIRST AND SECOND OF
THE JOINED CASES
26. The applicants in the first of the joined cases
(application no. 58170/13) sent a pre-action protocol letter to the
Government on 3 July 2013 setting out their complaints and seeking
declarations that sections 1 and 3 of the Intelligence Services Act 1994
(“the ISA” – see paragraphs 108 and 110 below), section 1 of the Security
Services Act 1989 (“the SSA” – see paragraph 106 below) and section 8 of
RIPA (see paragraph 66 below) were incompatible with the Convention. In
their reply of 26 July 2013, the Government stated that the effect of
section 65(2) of RIPA was to exclude the jurisdiction of the High Court in
respect of human rights complaints against the intelligence services, but that
the applicants’ complaints could have been raised before the IPT. The IPT
was a specialised Tribunal established under RIPA to hear allegations by
citizens of wrongful interference with their communications as a result of
conduct covered by that Act, and it was endowed with exclusive jurisdiction
to investigate any complaint that a person’s communications had been
intercepted and, where interception had occurred, to examine the authority
for such interception (see paragraphs 122-133 below). However, no further
action was taken by these applicants.
27. The applicants in the second of the joined cases
(application no. 62322/14) did not bring any domestic proceedings as they
did not believe that they had an effective remedy for their Convention
complaints.
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