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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
selectors and search criteria, material which is not added to the analyst’s
index is also destroyed (see paragraphs 72-77 and 90 above).
371. Paragraph 7.9 provides that where an intelligence service receives
unanalysed intercepted material and related communications data from
interception under a section 8(4) warrant, it must specify maximum
retention periods for different categories of the data which reflect its nature
and intrusiveness. These specified periods should normally be no longer
than two years, and should be agreed with the Interception of
Communications Commissioner. So far as possible, all retention periods
should be implemented by a process of automated deletion, which is
triggered once the applicable maximum retention period has been reached
for the data at issue (see paragraphs 72-77 above). Pursuant to
paragraph 7.8, if intercepted material is retained, it should be reviewed at
appropriate intervals to confirm that the justification for its retention is still
valid under section 15(3) of RIPA (see paragraph 90 above).
372. According to the 2016 annual report of the Interception of
Communications Commissioner, every interception agency had a different
view on what constituted an appropriate retention period for intercepted
material and related communications data. The retention periods for content
ranged between thirty days and one year and the retention periods for
related communications data ranged between six months and one year (see
paragraph 186 above). Therefore, while the specific retention periods are
not in the public domain, it is clear that they cannot exceed two years and,
in practice, they do not exceed one year (with much content and related
communications data being retained for significantly shorter periods).
373. Furthermore, where an application is lodged with the IPT, it can
examine whether the time-limits for retention have been complied with and,
if they have not, it may find that there has been a breach of Article 8 of the
Convention and order the destruction of the relevant material. Where the
retention has resulted in damage, detriment or prejudice, compensation may
also be awarded. In the Liberty proceedings, brought by the applicants in the
third of the joined cases, the IPT found that there had been a breach of
Article 8 of the Convention by virtue of the fact that email communications
of Amnesty International, which had been intercepted and accessed
“lawfully and proportionately”, had nevertheless been retained for longer
than was permitted under GCHQ’s internal policies. GCHQ was ordered to
destroy the communications within seven days, and to provide a closed
report within fourteen days confirming their destruction. A hard copy of the
communications was to be delivered to the Commissioner (see paragraph 54
above).
374. Therefore, in the Court’s view the provisions on the erasure and
destruction of intercept material are also sufficiently clear.