BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
specifically put in place systems and processes to make sure that actually
occurred, and, following the Chamber judgment, the Government had been
working with the IC Commissioner’s Office to ensure that there would be
enhanced oversight of selectors and search criteria under IPA. However, the
Government asserted that prior judicial authorisation would not have been
possible for each selector without fundamentally altering their ability to
discover and repel threats. GCHQ systems were necessarily tasked with
many thousands of selectors which sometimes had to change rapidly in
order to keep pace with fast moving investigations and threat discoveries.
293. Communications to which only the “strong selector” process was
applied were discarded immediately unless they matched the strong selector.
Communications to which the “complex query” process was also applied
were retained for a few days, in order to allow the process to be carried out,
and were then automatically deleted, unless they had been selected for
examination. Communications which had been selected for examination
could be retained only where it was necessary and proportionate to do so.
The default position was that the retention period for selected
communications was no longer than a few months, after which they were
automatically deleted (although if the material had been cited in intelligence
reporting, the report was retained). In exceptional circumstances a case
could be made to retain selected communications for longer, as provided for
in the Interception of Communications Code of Practice (“the IC Code”).
294. The Government reiterated that any analysts who examined
selected material had to be specially authorised to do so, and received
mandatory regular training, including training on the requirements of
necessity and proportionality. They were also vetted. Before they examined
the material, they had to create a record setting out why access to the
material was required, why it was consistent with the Secretary of State’s
certificate and the requirements of RIPA; and why it was proportionate
(including considerations of any circumstances likely to give rise to a
degree of collateral infringement of privacy). Unless such a record had been
created, GCHQ’s systems did not permit access to material.
295. As to the safeguards in respect of related communications data, the
Government argued that examining the content of the most sensitive and
private communications always involved a greater degree of intrusion than
examining related communications data, irrespective of whether those data
were aggregated to provide a detailed picture of where an individual was
located, what websites he or she visited, or with whom he or she chose to
communicate. On that basis, it remained appropriate for the rules governing
content to be more exacting than those governing related communications
data. Nevertheless, the Government accepted that the Secretary of State
should be required to certify the necessity of examining related
communications data under a bulk warrant pursuant to a regime analogous
(though not identical) to the certification regime in place for the content of
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