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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
observations in the present case). In Liberty and Others, the Court compared
the predecessor of the section 8(4) regime unfavourably with the German
system under consideration in Weber and Saravia, noting that the G10 Act
authorised the Federal Intelligence Service to carry out monitoring of
communications only with the aid of search terms which served, and were
suitable for, the investigation of the dangers described in the monitoring
order and which search terms had to be listed in the monitoring order
(Liberty and Others, cited above, § 68 and Weber and Saravia, cited above,
§ 32).
340. This does not mean that selectors and search criteria need to be
made public; nor does it mean that they necessarily need to be listed in the
warrant ordering interception. In fact, in the Liberty proceedings the IPT
found that the inclusion of the selectors in the warrant or accompanying
certificate would “unnecessarily undermine and limit the operation of the
warrant and be in any event entirely unrealistic” (see paragraph 44 above).
The Court has no reason to call this conclusion into question. Nevertheless,
the search criteria and selectors used to filter intercepted communications
should be subject to independent oversight; a safeguard which appears to be
absent in the section 8(4) regime. Indeed, the ISC report criticised the
absence of any meaningful oversight of both the selectors and search criteria
(see paragraph 157 above).
341. As a result of the application of selectors and automated searches,
an index is generated. Material not on the index is discarded. Only material
on the index may be examined by an analyst, and only if it satisfies the two
criteria in section 16 of RIPA, namely certification by the Secretary of State
as to necessity (section 16(1); see paragraphs 78-85 above) and presence for
the time being in the British Islands (section 16(2)).
342. As regards the certification by the Secretary of State, the ISC
observed that the categories set out in the certificates were set out in very
general terms (for example, “material providing intelligence on terrorism (as
defined by the Terrorism Act 2000 (as amended)) including, but not limited
to, terrorist organisations, terrorists, active sympathisers, attack planning,
fund-raising”) (see paragraph 156 above). Similarly, the Independent
Reviewer of Terrorism Legislation recommended that the purposes for
which material or data was sought should be spelled out by reference to
specific operations or mission purposes (for example, “attack planning by
ISIL in Iraq/Syria against the UK”) (see paragraph 162 above). In order for
this safeguard to be effective, the Court agrees that it would be highly
desirable for the certificate to be expressed in more specific terms than it
currently appears to be.
343. On the other hand, the exclusion of communications of individuals
known currently to be in the British Islands is, in the opinion of the Court,
an important safeguard, since persons of interest to the intelligence services
who are known to be in the British Islands could be subject to a targeted