BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
of any clearly defined surveillance target, where it would not cause
substantial harm to the public interest.
282. The applicants identified a number of elements of the United
Kingdom’s bulk interception regime which they considered to be
inadequate. First of all, there was an absence of independent, let alone
judicial, authorisation of surveillance. While judicial authorisation might
not in itself be a sufficient safeguard against abuse, this did not support the
conclusion that it was not a necessary one. In addition, the applicants
believed that there should also be independent, if not judicial, approval of
the selectors and search terms used by GCHQ. However, neither the bearers
to be intercepted nor the strong selectors were listed in the warrant.
283. Secondly, the distinction between internal and external
communications was not only poorly defined but also meaningless, with
most communications likely to be swept up in the “external” category. In
the applicants’ opinion, it would have been possible to have provided more
meaningful protection to internal communications. For example, in Sweden
all internal communications had to be destroyed immediately if they were
discovered.
284. Thirdly, there were limited safeguards for the content of
communications of persons known to be in the British Islands, and there
were virtually no safeguards for their related communications data. GCHQ
was able to retain the entirety of related communications data obtained
under the bulk interception regime, subject only to limits on its storage
capacity and the maximum retention period. These data – which were
extremely intrusive – could be searched according to a factor referable to an
individual known to be in the British Islands, without any requirement that
the Secretary of State first certify that the search was necessary and
proportionate.
285. Fourthly, the regime did not specify, in law and in detail, the
purpose for which material could be examined and, according to the
Intelligence and Security Committee of Parliament (“the ISC”), the
description of material in the Secretary of State’s certificate was “generic”.
286. Finally, the applicants submitted that the IC Commissioner only
provided part-time oversight and, with limited resources, had been
insufficient to guarantee meaningful and robust oversight. The effectiveness
of the IPT was similarly limited as it could not provide a remedy for the
absence of prior judicial authorisation and, in any case, persons had to have
some basis for believing that they had been subject to secret surveillance
before the IPT would accept their complaint.
(b) The Government
287. The Government submitted that the information obtained under the
bulk interception regime was critical to the protection of the United
Kingdom from national security threats. Not only did it enable them to
87