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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
governing the selection of bearers for interception and the selection of
intercepted material for examination are sufficiently robust to provide
adequate guarantees against abuse. Of greatest concern, however, is the
absence of robust independent oversight of the selectors and search criteria
used to filter intercepted communications.
- The exemption of related communications data from the safeguards
applicable to the searching and examining of content
348. The Article 8(4) regime permits the bulk interception of both
content and related communications data (the latter being the “who, when
and where” of a communication). However, section 16 applies only to
“intercepted material” which, according to the interpretation provision in
section 20 of RIPA, is defined as the content of intercepted communications
(see paragraph 78 above). The related communications data of all
intercepted communications – even internal communications incidentally
intercepted as a “by-catch” of a section 8(4) warrant – can therefore be
searched and selected for examination without restriction.
349. The Government contend that access to communications data is
necessary to give effect to one of the section 16 safeguards, namely to
determine whether a person is or is not in the British Islands. They further
contend that as communications data is less intrusive than data relating to
content (at least when compared on a like-for-like basis), its interception,
storage and use should not be subject to the same six minimum
requirements (see paragraph 307 above). Instead, the Court should simply
ask whether the law was sufficiently clear to give the individual adequate
protection against arbitrary interference.
350. The Court has distinguished between different methods of
investigation which result in different levels of intrusion into an individual’s
private life. According to the Court, the interception of communications
represents one of the gravest intrusions, as it is capable of disclosing more
information on a person’s conduct, opinions or feelings (see Uzun
v. Germany, no. 35623/05, § 52, ECHR 2010 (extracts))). Consequently, in
Uzun the Court found that the interception of communications represented a
greater intrusion into an individual���s private life than the tracking of his
vehicle via GPS (see Uzun, cited above, § 52). In Ben Faiza v. France,
no. 31446/12, 8 February 2018, it further distinguished between the tracking
of a vehicle, which nevertheless made it possible to geolocate a person in
real time, and the lower level of intrusion occasioned by the transmission to
a judicial authority of existing data held by a public or private body (see
Ben Faiza, cited above, § 74).
351. However, thus far the Court has only declined to apply the
minimum requirements test in secret surveillance cases which did not
involve the interception of communications, and in which the degree of
intrusion was not considered to be comparable to that caused by interception