BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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maintain the necessary procedures to safeguard the intercepted material, and
to ensure that it was disclosed, copied, distributed and retained only to the
minimum extent necessary. It could only be further disclosed to the
authorities of a third country if explicitly agreed. Finally, any disclosure
would have to satisfy the constraints imposed by sections 1-2 of the
Security Services Act 1989, sections 1-4 of the Intelligence Services Act
1994 as read with section 19(3)-(5) of the Counter Terrorism Act 2008 and
section 6(1) of the Human Rights Act 1998.
291. With regard to the final Weber requirement, the Government
contended that section 15(3) of RIPA and paragraphs 7.8-7.9 of the IC Code
made sufficient provision for the circumstances in which intercepted
material had to be erased or destroyed (including the obligation to review
retention at appropriate intervals, and the specification of maximum
retention periods which should normally be no longer than two years).
292. Although the Government acknowledged that the safeguards in
section 16 of RIPA did not apply to “related communications data”, they
argued that the covert acquisition of related communications data was less
intrusive than the covert acquisition of content and, as such, the Court had
never applied the Weber requirements to powers to acquire communications
data. It was therefore their contention that instead of the list of six specific
foreseeability requirements, the test in respect of communications data
should be the more general one of whether the law indicated the scope of
any discretion and the manner of its exercise with sufficient clarity to give
the individual adequate protection against arbitrary interference.
293. According to the Government, the section 8(4) regime satisfied this
test as regards the obtaining and use of related communications data. First
of all, “related communications data” as defined in sections 20 and 21 of
RIPA was not synonymous with “metadata” but was instead a limited subset
of metadata. Secondly, the section 8(4) regime was sufficiently clear as to
the circumstances in which the intelligence services could obtain related
communications data (namely, by the interception of bearers pursuant to a
section 8(4) warrant). Once obtained, access to related communications data
had to be necessary and proportionate under section 6(1) of the Human
Rights Act 1998 and subject to the constraints in sections 1-2 of the Security
Services Act and sections 1-4 of the Intelligence Services Act. Storage,
handling, use and disclosure of related communications data, including
access by a foreign intelligence partner, would be constrained by section 15
of RIPA and paragraphs 7.1-7.10 of the IC Code. Finally, the Government
argued that there was good reason for exempting related communications
data from the safeguards in section 16; in order for section 16 to work, the
intelligence services needed to be able to assess whether a potential target
was “for the time being in the British Islands”.
294. Finally, the Government addressed the applicants’ proposals for
“updating” the Weber requirements. They submitted that any requirement of