BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
121
284. Although the Government denied that the section 8(4) regime
permitted mass surveillance or generalised access to communications, it
accepted that it permitted, pursuant to the lawful authority of warrants, the
bulk interception of bearers for wanted external communications. In the
Government’s opinion, the distinction between “internal” and “external”
communications was sufficiently clear, and in any event it operated
primarily as a safeguard at the macro level; that is, in determining which
bearers should be targeted for interception. The Government further
contended that bulk interception was critical for the discovery of threats and
hitherto unknown targets which might be responsible for threats. Even when
the identity of targets was known, they were likely to use a variety of
different means of communication, and change those means frequently.
Electronic communications did not traverse the Internet by routes that could
necessarily be predicted; rather, they took the most efficient route,
determined by factors such as cost and the volume of traffic passing over
particular parts of the Internet at different times of the day. In addition,
communications sent over the Internet were broken down into small pieces
(or “packets”), which were transmitted separately, often through different
routes. In the opinion of the Government, it was therefore necessary to
intercept all communications travelling over more than one bearer to
maximise the chance of identifying and obtaining the communications being
sent to known targets.
285. With regard to whether the interference complained of was “in
accordance with the law”, the Government relied on the fact that it had its
basis in primary legislation, namely section 8(4) of RIPA, supplemented by
the Interception of Communications Code of Practice (“the IC Code”). It
had been further clarified by the reports of the Interception of
Communications Commissioner, which were also public documents.
286. In relation to the Weber requirements the Government argued that
the first foreseeability requirement, being the “offences” which might give
rise to an interception order, was satisfied by section 5 of RIPA, which
defined the purposes for which the Secretary of State could issue an
interception warrant. In Kennedy, despite the applicant’s criticism of the
terms “national security” and “serious crime”, the Court had found the
description of the offences which might give rise to an interception order to
be sufficiently clear (Kennedy, cited above, § 159).
287. Relying on Weber, the Government submitted that the second
foreseeability requirement (the categories of people liable to have their
communications intercepted) applied at both the interception stage and the
selection stage. As regards the interception stage, a section 8(4) warrant was
targeted at “external” communications, although in principle it might
authorise the interception of “internal” communications insofar as that was
necessary in order to intercept the external communications to which the
warrant related. With regard to the selection stage, section 16(1) of RIPA