152
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
request to a foreign intelligence service (see Roman Zakharov, cited above,
§ 171).
394. According to Chapter 12 of the IC Code, absent exceptional
circumstances intelligence can only be requested from third countries where
there is already a section 8(1) or section 8(4) warrant in place. This means
that there must either be an Article 8(1) warrant in relation to the subject at
issue, or a section 8(4) warrant and accompanying certificate which covers
the subject’s communications (see paragraph 90 above). However,
section 8(4) warrants are relatively broad in scope, and the Court has
already considered the general terms in which both warrants and
accompanying certificates are drafted (see paragraphs 156 and 341 above).
Moreover, it is clear from the Liberty proceedings that at least two of the
applicants in the third of the joined cases had their communications lawfully
intercepted and selected for examination by the United Kingdom
intelligence services under the section 8(4) regime (see paragraphs 54 and
55 above). While there is no reason to believe that these applicants were
themselves of interest to the intelligence services, their communications
could have been obtained lawfully under the section 8(4) regime if, as they
claim, they were in contact with persons who were. Similarly, their
communications could lawfully be requested from a third country under the
intelligence sharing regime if they were in contact with an individual who
was the subject of a request.
395. The Court would therefore accept, on the basis of the information
submitted to it, that the applicants were potentially at risk of having their
communications requested from a foreign intelligence service. In addition, it
would accept that they were also potentially at risk of having their
communications obtained by a foreign intelligence service. Although the
United States of America is not the only country from which the authorities
of the respondent State might request intelligence, the submissions before
this Court – and before the IPT – focused on the receipt of information from
the NSA. While PRISM is a targeted scheme which allows intelligence
material to be obtained from Internet Service Providers (“ISPs”), Upstream
appears to be a bulk interception scheme similar to the section 8(4) regime.
In other words, it permits broad access to global data, in particular that of
non-US citizens, which can then be collected, stored and searched using
keywords.
396. In light of the foregoing considerations, the Court would accept that
the applicants were potentially at risk of having their communications
obtained by the intelligence services of the respondent State under the
intelligence sharing regime. As such, it finds that they can claim to be
victims, within the meaning of Article 34 of the Convention, of the violation
alleged to flow from the intelligence sharing regime.
397. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes