and
proportionate
and
that
the
selection
for
examination
was
proportionate”.129
II.
INTELLIGENCE SHARING BREACHES THE CONVENTION
221.
The UK Intelligence Services can access information in several ways. They
can initially intercept the data itself, for example, while it transits over a
wire, a fibre optic cable or a wireless link. Under UK law, interception also
includes “collect[ing] or otherwise…hav[ing] access to” data stored by “the
system by means of which the [information] is being, or has been,
transmitted” (see section 2(7) of RIPA 2000).
222. Intercepted material can also be obtained under intelligence sharing
arrangements with foreign intelligence agencies. For example, a foreign
agency may operate its own bulk interception programme. The safeguards
and oversight of such programmes may be inadequate. Nevertheless, the
data initially intercepted may be shared with or made available, including
in bulk, to the UK Intelligence Services. Such access is as intrusive to
privacy as if a UK agency had initially intercepted the information itself
and the means by which the interference with privacy is carried out is
irrelevant. Conduct that is as intrusive as interception ought to be
accompanied by safeguards and oversight that are at least as strong.
Otherwise, states may be tempted to adopt means of surveillance that
provide fewer safeguards, but remain highly intrusive. The rights granted
in Articles 8 and 10 must be practical and effective, not theoretical and
illusory.
223. The UK regime governing the circumstances in which the UK Intelligence
Services can access, extract, filter, store, analyse and/or disseminate
material which has been initially intercepted by a foreign intelligence
129
IPT Third Judgment, paras 14-15.
87