BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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communications” to modern forms of communications, the Secretary of
State for the Foreign and Commonwealth, in giving evidence to the
Intelligence and Security Committee of Parliament in October 2014,
provided clarification about the status of emails, web-browsing, social
media and cloud storage (see paragraph 71 above). However, even where it
is clear that a communication is “internal”, as it is between two people in
the British Islands, in practice, some or all of its parts might be routed
through one or more other countries, and would therefore be at risk of being
intercepted under the section 8(4) regime. This is expressly permitted by
section 5(6) of RIPA, which allows the interception of communications not
identified in the warrant (see paragraph 63 above).
337. That being said, it is clear that the targeted bearers are not chosen at
random. They are selected because they are believed to be the most likely to
carry external communications of intelligence interest (paragraph 6.7 of the
IC Code, at paragraph 90 above and the Annual Report of the Interception
of Communications Commissioner for 2016, at paragraph 178 above).
Therefore, while anyone could potentially have their communications
intercepted under the section 8(4) regime, it is clear that the intelligence
services are neither intercepting everyone’s communications, nor exercising
an unfettered discretion to intercept whatever communications they wish. In
practice, one of the grounds set out in section 5(3) of RIPA must be
satisfied, bulk interception must be proportionate to the aim sought to be
achieved, and – at least at the macro level of selecting the bearers for
interception – only external communications can be targeted.
338. As the ISC observed, it would be desirable for the criteria for
selecting the bearers to be subject to greater oversight by the Commissioner
(see paragraph 157 above). However, the Court has already noted that by its
very nature a bulk interception regime will allow the authorities a broad
discretion to intercept communications and, as such, it does not consider
this fact alone to be fatal to the Article 8 compliance of the section 8(4)
regime. While the discretion to intercept should not be unfettered – since the
interception and filtering of a communication, even if it is subsequently
discarded in near real-time, is sufficient to constitute an interference with a
persons’ rights under Article 8 of the Convention –, more rigorous
safeguards will be required at the third and fourth stages identified in
paragraph 329 above, as any interference in such cases will be significantly
greater.
339. With regard to the selection of communications for examination,
once communications are intercepted and filtered, those not discarded in
near real-time are further searched; in the first instance by the automatic
application, by computer, of simple selectors (such as email addresses or
telephone numbers) and initial search criteria, and subsequently by the use
of complex searches (see paragraph 6.4 of the IC Code at paragraph 90; see
also the ISC report at paragraphs 151-159 above and the Government’s