BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
communications under section 16 of RIPA. The new Code of Practice was
to be amended to this effect.
296. Until then, however, communications data were subject to the same
initial filtering process as content, by which GCHQ’s processing systems
automatically discarded certain types of communications in near-real time.
They were then subjected by automated means to simple or complex
queries. However, there were two main differences between the treatment of
content and the treatment of related communications data. First of all, the
safeguards in section 16 – which provided that, in order to be examined,
material had to fall within the Secretary of State’s certificate and could not
be selected according to a factor referable to an individual known for the
time being to be in the British Islands and the purpose of which was to
identify his or her communications – only applied to content. According to
the Government, it would not be practicable to apply this safeguard to
related communications data. Significantly more queries were made against
communications data (as many as several thousand in one week), and in a
large number of cases the identity of the person to whom the data might
relate was unknown. In addition, related communications data often had a
temporal quality, and having to delay conducting searches of such data
pending the acquisition of an individual authority would seriously risk
undermining their utility in intelligence terms. Requiring the Secretary of
State to certify necessity and proportionality in each individual case, in
advance of the searches being undertaken, could not possibly be done.
297. Secondly, related communications data which were not selected for
examination were not immediately discarded. The principal reason for this
was that communications data were to a large extent used to discover threats
or targets of which GCHQ might previously have been unaware. They
therefore required more analytical work, over a lengthy period, to discover
“unknown unknowns”. That discovery could very often involve an exercise
of piecing together disparate small items of communications data to form a
“jigsaw” revealing a threat; and would include the possible examination of
items that initially appeared to be of no intelligence interest. Discarding
unselected communications data immediately, or after a few days only,
would render that exercise impossible.
298. Nevertheless, the Government confirmed that before any analyst
could examine any communications data at all, they had to complete a
record explaining why it was necessary and proportionate to do so, in
pursuit of GCHQ’s statutory functions. An auditable record was therefore
produced, setting out the justification for examination, and these records
were available for inspection. Moreover, no intelligence reporting could be
made on the basis of communications data unless and until they had been
examined. Finally, related communications could be retained only where it
was necessary and proportionate to do so, for a maximum period of several
months, unless an exceptional case to retain for longer was made. Otherwise
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