BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Islands; and the combined oversight functions of the ISC, the IC
Commissioner and the IPT satisfied the requirements of the Convention. At
all stages of the bulk interception process, the applicable safeguards were
built around the Convention concepts of necessity and proportionality.
Those fundamental principles governed the obtaining of the material in the
first place, its examination, handling, storage, disclosure, retention and
deletion.
290. In respect of those aspects of the regime which, according to the
Chamber, had not provided adequate safeguards against abuse, the
Government provided further clarification. First of all, although they
acknowledged that the warrant did not specify the individual bearers to be
targeted, as there would be serious impracticalities and difficulties with
including this information in the warrant, it nevertheless contained a
description of what the interception was going to involve and a description
of the sorts of bearers that would be intercepted. The IC Commissioner was
briefed regularly by GCHQ about the basis on which bearers were selected
for interception.
291. Secondly, they clarified that the choice of selectors was in fact
carefully controlled. Whenever a new selector was added to the system, the
analyst adding it had to complete a written record, explaining why it was
necessary and proportionate to apply the selector for the purposes within the
Secretary of State’s certificate. This was done by the selection of text from a
drop down menu, followed by the addition, by the analyst, of free text
explaining why it was necessary and proportionate to make the search. In
the case of a “strong selector”, the analyst had to explain, for example, the
justification for seeking the communications of a particular target; how the
selector related to the target’s method of communicating; and why selection
of the relevant communications would not involve an unacceptable degree
of collateral intrusion into privacy. In the case of a new “complex query”,
the analyst had to develop selection criteria most likely to identify
communications bearing intelligence of value; and similarly had to explain
why the criteria were justified, and why their use would be necessary and
proportionate for the purposes within the Secretary of State’s certificate.
Selectors used for target development or target discovery could remain in
use for a maximum of three months before a review was necessary.
292. Any selector had to be as specific as possible in order to select the
minimum material necessary for the intelligence purpose, and be
proportionate. If, through analysis, it was established that selectors were not
being used by their intended target, prompt action had to be taken to remove
them from relevant systems. The use of selectors had to be recorded in an
approved location that enabled them to be audited; created a searchable
record of selectors in use; and enabled oversight by the IC Commissioner.
Robust independent oversight of selectors and search criteria was therefore
within the IC Commissioner’s powers: by the time of his 2014 report he had
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