BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
therefore involved searching the content of communications traversing the
Internet. However, from April 2017 onwards the NSA have not been
acquiring or collecting communications that are merely “about” a target. In
addition the NSA stated that, as part of this curtailment, it would delete the
vast majority of previously acquired Upstream Internet communications as
soon as practicable.
264. Section 702 requires the Government to develop targeting and
minimization procedures which are kept under review by the FISC.
265. Executive Order 12333, which was signed in 1981, authorises the
collection, retention and dissemination of information obtained in the course
of a lawful foreign intelligence, counterintelligence, international narcotics
or international terrorism investigation. Surveillance of foreign nationals
under Executive Order 12333 is not subject to domestic regulation under
FISA. It is not known how much data are collected under
Executive Order 12333, relative to those collected under section 702.
THE LAW
266. Cumulatively, the applicants in the three joined cases complained
about the Article 8 and Article 10 compatibility of three discrete regimes:
the regime for the bulk interception of communications under section 8(4)
of the Regulation of Investigatory Powers Act 2000 (“RIPA”); the regime
for the receipt of intelligence from foreign intelligence services; and the
regime for the acquisition of communications data from communications
service providers (“CSPs”).
267. Before considering each of these regimes in turn, the Grand
Chamber will first address a preliminary issue.
I.
PRELIMINARY ISSUE BEFORE THE GRAND CHAMBER
268. According to the Court’s settled case-law, the “case” referred to the
Grand Chamber necessarily embraces all aspects of the application
previously examined by the Chamber in its judgment. The “case” referred to
the Grand Chamber is the application as it has been declared admissible, as
well as the complaints that have not been declared inadmissible (see S.M.
v. Croatia [GC], no. 60561/14, § 216, 25 June 2020, and the authorities
cited therein).
269. The applicants in the present case lodged their complaints in 2013,
2014 and 2015 respectively. Those complaints mostly concerned the State’s
surveillance activities under RIPA and the related Codes of Practice. The
Codes of Practice were subsequently amended. More significantly, the
Investigatory Powers Act 2016 (“IPA”) received royal assent on
29 November 2016 and its provisions began to enter into force from
December 2016 onwards. The new surveillance regimes set out in the IPA
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