BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
uncover hitherto unknown threats, but it also allowed them to conduct
surveillance on known targets outside their territorial jurisdiction. The
unpredictability of the route by which electronic communications were
transmitted (and the fact that those communications were broken down into
packets which could be transmitted via different routes) meant that in order
to obtain even a small proportion of the communications of known targets
overseas, it was necessary to intercept all the communications flowing over
a selection of bearers. The bulk interception power had been the subject of
detailed and repeated consideration by a series of independent bodies in
recent years and there was a unanimity of view that there was not “any
alternative” ... “or combination of alternatives sufficient to substitute for the
bulk interception power”. According to the Government, States should
rightly be afforded a broad margin of appreciation in judging what systems
were necessary to protect the general community from such threats, and in
subjecting those systems to scrutiny the Court should take care not to
undermine the effectiveness of a means of obtaining life-saving intelligence
which could not be gathered in any other way.
288. The Government contended that the interception of
communications under the bulk interception regime would only have
resulted in a meaningful interference with a person’s Article 8 rights if his
or her communications were either selected for examination (that is,
included on an index of communications from which an analyst could
potentially choose items to inspect) or actually examined by an analyst. His
or her rights could not be said to have been infringed to any more than the
most minimal degree if a copy of a communication was either discarded in
near-real time or held for a few days at most in a general “amorphous soup”
of data; in other words, if it was searched using selectors and queries but it
was not examined or used. The overwhelming bulk of communications
flowing over each intercepted cable could not be “selected for
examination”, and would therefore have to be discarded.
289. With regard to the necessary safeguards, the Government agreed
with the Chamber that it was appropriate to assess a bulk interception
regime by reference to the same standards that had been developed by the
Court in cases concerning the targeted interception of communications. The
Government also largely agreed with the Chamber’s assessment of the
section 8(4) regime by reference to those standards. They reiterated that
there was no possibility of any communications being viewed by an analyst
unless and until they had been selected for examination following the
automated sifting process; selection and any ensuing examination were very
carefully controlled; no intelligence report could be made of any
communications or communications data unless they had been viewed by an
analyst; section 16(2) of RIPA required the Secretary of State to certify the
necessity and proportionality of searching the content of communications
according to a factor referable to an individual known to be in the British
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