BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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their telephones tapped. In Roman Zakharov the Court made clear that
pursuant to these two requirements “the national law must define the scope
of application of secret surveillance measures by giving citizens an adequate
indication as to the circumstances in which public authorities are
empowered to resort to such measures” (see Roman Zakharov, cited above,
§§ 243).
329. In a targeted interception regime, the nature of the communications
to be intercepted should be tightly defined, but once interception takes place
it is likely that all – or nearly all – of the intercepted communications are
analysed. The opposite will normally be true of a bulk interception regime,
where the discretion to intercept is broader, but stricter controls will be
applied at the selection for examination stage. In fact, in the present case, it
is clear from Chapter 6 of the IC Code (see paragraph 90 above), the ISC
report (see paragraphs 151-159 above), the first IPT judgment in the Liberty
proceedings (see paragraphs 41-49 above) and the Government’s
observations that there are four distinct stages to the section 8(4) regime:
1. The interception of a small percentage of Internet bearers, selected
as being those most likely to carry external communications of
intelligence value.
2. The filtering and automatic discarding (in near real-time) of a
significant percentage of intercepted communications, being the traffic
least likely to be of intelligence value.
3. The application of simple and complex search criteria (by
computer) to the remaining communications, with those that match the
relevant selectors being retained and those that do not being discarded.
4. The examination of some (if not all) of the retained material by an
analyst).
330. Thus, in addressing the first two minimum requirements, the Court
will examine first, whether the grounds upon which a warrant can be issued
are sufficiently clear; secondly, whether domestic law gives citizens an
adequate indication of the circumstances in which their communications
might be intercepted; and thirdly, whether domestic law gives citizens an
adequate indication of the circumstances in which their communications
might be selected for examination (see paragraph 328 above).
331. According to RIPA and the IC Code, the Secretary of State can
only issue a warrant if he is satisfied that it is necessary in the interests of
national security, for the purpose of preventing or detecting serious crime,
or for the purpose of safeguarding the economic well-being of the United
Kingdom so far as those interests are also relevant to the interests of
national security; and that the conduct authorised by the warrant is
proportionate to what is sought to be achieved by that conduct. Pursuant to
domestic law, when assessing necessity and proportionality, account should
be taken of whether the information sought under the warrant could
reasonably be obtained by other means (section 5(3) of RIPA and Chapter 6