IPCO Annual Report 2018
• which involved, as an integral part of it, the sending of a communication; or
• which involved, as an integral part of it, a breach of a person’s privacy.
2.41
We anticipate that this new capability will lead to a rise in the number of applications in
2019. We will monitor this change closely, to ensure that the process is legally compliant.
We have monitored applications passing through OCDA particularly carefully in the initial
stages of transition and will report on this in more detail in the 2019 report.
Big Brother Watch judgment
2.42
On 13 September 2018, the European Court of Human Rights (ECHR) handed down its
judgment in Big Brother Watch v UK (BBW judgment).14 The case related to three aspects of
the UK’s investigatory powers regime under RIPA 2000:
• bulk interception;
• intelligence sharing; and
• the targeted acquisition of communications data.
2.43
The Court heard arguments that activity in these areas interfered with the Applicants’
rights under Articles 8, 10 and 14 of the ECHR and challenged, under Article 6, the
comparability of the procedure before the Investigatory Powers Tribunal (IPT).
2.44
By a majority, the First Section of the Court accepted the utility and importance of bulk
interception powers, stating ‘the decision to operate a bulk interception regime in order
to identify hitherto unknown threats to national security is one which continues to fall
within a State’s margin of appreciation’. However, there were two areas where the Court
determined that the regime was not compliant with Article 8:
• The court decided that the bulk interception of ‘external communications’ breached
Article 8 in light of ‘the absence of robust independent oversight of the selectors and
search criteria used to filter intercepted communications’. The IPA has already introduced
heightened safeguards, including the introduction of operational purposes which limit the
purposes for which bulk data may be examined, and oversight requirements, but HMG
has committed to working with IPCO to establish how oversight of selectors could be
enhanced; and
• The Court did not accept that the interception and use of CD that is derived from bulk
interception (‘related communications data’ in RIPA terms; ‘secondary data’ in IPA terms)
constituted a lesser intrusion into Article 8 than examination of content and should
therefore not be exempt from the safeguards that apply to content under RIPA. In
particular, the Court determined that similar safeguards should apply to the examination
of related CD as applied to the examination of content where an individual is known to
be in the British Islands (under RIPA 2000, the examination of such content may only
take place where it is certified as necessary by the Secretary of State). The developments
in technology and the way in which communications data can be utilised by UKIC15 to
investigate an individual means it can be highly intrusive.
14 https://www.echr.coe.int/Documents/Press_Q_A_Brother_Watch_ENG.pdf
15 The term UKIC is used to refer to the UK’s intelligence agencies MI5, SIS and GCHQ and may also refer to Defence Intelligence. In
most instances throughout this report, UKIC will be used to refer to the intelligence agencies, noting that not all powers available to
the agencies are applicable to Defence Intelligence.
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