154
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
did not necessarily apply in other surveillance cases (for example, Uzun,
cited above). While some of the material obtained from foreign
governments might be the product of intercept, that would not necessarily
be the case and the intelligence services might not even know whether
communications provided to them by a foreign Government were the
product of intercept.
403. Even if the six minimum requirements did apply, the Government
argued that they were satisfied. First, the regime was sufficiently clear as
regards the circumstances in which the intelligence services could in
principle obtain information from other States; they could only obtain
information so far as it was necessary for the proper discharge of their
functions, being the interests of national security, the economic well-being
of the United Kingdom, and the prevention and detection of serious crime.
404. Moreover, the circumstances in which the intelligence agencies
could obtain information under the intelligence sharing regime were defined
and circumscribed by the IC Code. In this regard, the effect of Chapter 12 of
the Code was to confirm that, other than in exceptional circumstances, the
intelligence services could only request “raw intercept” from a foreign
government if it concerned targets who were already the subject of an
interception warrant under Part I of RIPA, that material could not be
obtained by the intelligence services themselves, and it was necessary and
proportionate to obtain it. In the absence of a warrant, a request could only
be made if it did not amount to a deliberate circumvention, or otherwise
frustrate the objectives, of RIPA. Furthermore, any request made in the
absence of a warrant would be decided on by the Secretary of State
personally, and if the request was for “untargeted” material,
communications obtained could not be examined according to any of the
factors mentioned in section 16(2) of RIPA.
405. The Government further contended that the intelligence sharing
regime was sufficiently clear as regards the subsequent handling, use and
possible onward disclosure of material. Not only were the intelligence
services bound by the general constraints of proportionality in the HRA and
the fifth and seventh data protection principles, but Chapter 12 of the IC
Code also provided that intercepted communications data or content
received from another State, regardless of whether it was solicited or
unsolicited, analysed or unanalysed, was subject to exactly the same rules
and safeguards as material obtained directly by the intelligence services by
interception under RIPA. In other words, the safeguards set out in
section 15 of RIPA also applied to intercept material obtained under the
intelligence sharing regime.
406. Finally, the Government pointed out that the intelligence sharing
regime was subject to the same oversight mechanisms as the section 8(4)
regime, and none of these oversight bodies had revealed any deliberate
abuse by the intelligence services of their powers. Furthermore, no evidence