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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
under this process are opened and read by analysts. GCHQ does not have
the capacity to read all communications.
13. The second processing system is targeted at an even smaller number
of bearers (a subset of those accessed by the process described in the
paragraph above) which are deliberately targeted as those most likely to
carry communications of intelligence interest. This second system has two
stages: first, the initial application of a set of “processing rules” designed to
discard material least likely to be of value; and secondly, the application of
complex queries to the selected material in order to draw out those likely to
be of the highest intelligence value. Those searches generate an index, and
only items on that index may potentially be examined by analysts. All
communications which are not on the list must be discarded.
14. The legal framework for bulk interception in force at the relevant
time is set out in detail in the “Relevant Domestic law and practice” section
below. In brief, section 8(4) of the Regulation of Investigatory Powers Act
2000 (“RIPA” – see paragraph 67 below) allows the Secretary of State to
issue warrants for the “interception of external communications”, and
pursuant to section 16 of RIPA (see paragraphs 78-85 below) intercepted
material cannot be selected to be read, looked at or listened to, “according to
a factor which is referable to an individual who is known to be for the time
being in the British Islands”.
2. The United States’ National Security Agency (“NSA”)
15. The NSA has acknowledged the existence of two operations called
PRISM and Upstream.
(a) PRISM
16. PRISM is a programme through which the United States’
Government obtains intelligence material (such as communications) from
Internet Service Providers (“ISPs”). Access under PRISM is specific and
targeted (as opposed to a broad “data mining” capability). The United
States’ administration has stated that the programme is regulated under the
Foreign Intelligence Surveillance Act (“FISA”), and applications for access
to material through PRISM have to be approved by the FISA Court, which
is comprised of eleven senior judges.
17. Documents from the NSA leaked by Edward Snowden suggest that
GCHQ has had access to PRISM since July 2010 and has used it to generate
intelligence reports. GCHQ has acknowledged that it acquired information
from the United States’ which had been obtained via PRISM.
(b) Upstream
18. According to the leaked documents, the Upstream programme
allows the collection of content and communications data from fibre-optic