BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
related communications data were automatically deleted once the maximum
period had expired.
299. Finally, in light of the Chamber judgment the Government
confirmed that it was taking steps to ensure that where non-content data
were to be selected for examination by reference to a person believed to be
in the British Islands, the selection had to be certified by the Secretary of
State as necessary and proportionate on a specific thematic basis. Pending
the introduction of a “thematic” certification regime, by means of changes
to the code governing the interception of communications under IPA,
GCHQ had been working with the IC Commissioner’s office to generate
management information that could be used by the IC Commissioner to
enhance ex post facto oversight of related communications data. In
particular, GCHQ had made changes to its systems so that in any case where
an analyst intended to select secondary data for examination relating to a
person believed to be in the British Islands by reference to a factor relating
to that person, that case would be flagged along with the supporting
justification for selecting the relevant data.
3. Third party submissions
(a) The Government of France
300. The French Government submitted that in the face of threats such
as international and cross-border crime, and in view of the increasing
sophistication of communication technologies, the strategic bulk
surveillance of communications was of vital importance to States in
protecting democratic society. Moreover, it was wrong to assume that bulk
interception constituted a greater intrusion into the private life of an
individual than targeted interception, which by its nature was more likely to
result in the acquisition and examination of a large volume of the subject’s
communications. In their view, there was no reason why the criteria set out
by the Court in Weber and Saravia (cited above) could not be considered
equally relevant to the effective supervision of data interception and
processing under a bulk interception regime. These criteria should, however,
be applied in the context of an overall assessment, weighing any
shortcomings against existing guarantees and the effectiveness of the
safeguards against abuse.
301. There was no justification for adding the need for “reasonable
suspicion” to these criteria. The authorities were generally not in a position
to know in advance whose electronic communications it might be useful for
them to monitor in the interests of law and order or national security, and
such a requirement would deprive the surveillance measure of all
operational interest. Moreover, in the Government’s view there was no need
for a judicial authority to be involved in the authorisation of such
intelligence operations, or to carry out ex post facto control, provided that
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