BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
259. Finally, the Court of Appeal admitted that, even if the foreign
intelligence services acted within the limits of their statutory powers and
treaty obligations, the fact that these statutory powers might be broader than
those of the Dutch intelligence services could under certain circumstances
raise concerns. For example, it was conceivable that the Dutch intelligence
services would be acting contrary to the Intelligence and Security Services
Act 2002 (or the spirit of it) if they were systematically or knowingly to
receive data from foreign intelligence agencies about Dutch residents, while
they could not have gathered these data by virtue of their own powers. In
that case, the restrictions imposed on the intelligence services by the
2002 Act could become a dead letter. However, the plaintiffs had not
substantiated or offered proof that the Dutch intelligence services
systematically or consciously exploited such a discrepancy between Dutch
law and foreign law.
260. An appeal on points of law, primarily based on alleged errors in the
interpretation of the plaintiffs’ claim by the Court of Appeal and on the
extent of the burden of substantiation put on them, was dismissed by the
“Hoge
Raad”
(Supreme
Court)
on
7
September
2018
(ECLI:NL:HR:2018:1434).
D. The United States of America
261. The United States’ intelligence services operate the Upstream
programme pursuant to section 702 of FISA.
262. The Attorney General and Director of National Intelligence make
annual certifications authorising surveillance targeting non-U.S. persons
reasonably believed to be located outside the United States of America.
They do not have to specify to the FISC the particular non-U.S. persons to
be targeted, and there is no requirement to demonstrate probable cause to
believe that an individual targeted is an agent of a foreign power. Instead,
the section 702 certifications identify categories of information to be
collected, which have to meet the statutory definition of foreign intelligence
information. Authorised certifications have included information concerning
international terrorism, and the acquisition of weapons of mass destruction.
263. Pursuant to the authorisation, the NSA, with the compelled
assistance of service providers, copies and searches streams of Internet
traffic as data flows across the Internet. Both telephone calls and Internet
communications are collected. Prior to April 2017 the NSA acquired
Internet transactions that were “to”, “from”, or “about” a tasked selector. A
“to” or “from” communication was a communication for which the sender
or a recipient was a user of a section 702 tasked selector. An “about”
communication was one in which the tasked selector was referenced within
the acquired Internet transaction, but the target was not necessarily a
participant in the communication. Collection of “about” communications
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