BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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(viii) Human Rights Watch (“HRW”)
415. Although the present applications focused on the receipt of foreign
intelligence from the United States, HRW believed that the network of
States with which communications intelligence was shared was vastly
larger. For example the “Five Eyes Alliance” comprised the United
Kingdom, the United States, Australia, Canada and New Zealand, and there
were also thought to be other, more restricted intelligence sharing coalitions
(for example, the “Nine Eyes”, adding Denmark, France, the Netherlands
and Norway; the “Fourteen Eyes”, adding Germany, Belgium, Italy, Spain
and Sweden; and the “Forty-One Eyes”, adding in others in the allied
coalition in Afghanistan).
(c) The Court’s assessment
(i) The scope of the applicants’ complaints
416. This is the first time that the Court has been asked to consider the
Convention compliance of an intelligence sharing regime. While the
operation of such a scheme might raise a number of different issues under
the Convention, in the present case the applicants’ complaints focus on the
Article 8 compliance of the regime by which the United Kingdom
authorities request and receive intelligence from foreign Governments. The
applicants do not complain about the transfer of intelligence from the
United Kingdom intelligence services to foreign counterparts; nor do they
invoke any other Convention Articles.
417. In the Liberty proceedings (in which the IPT was only concerned
with the receipt of information from the United States) the applicants
submitted that information acquired from the NSA fell into three categories:
material which the NSA had provided to the United Kingdom intelligence
services unsolicited, and which on its face derived from intercept;
communications which the United Kingdom intelligence services had either
asked the NSA to intercept, or to make available to them as intercept; and
material obtained by the NSA other than by the interception of
communications. Although the complaint before the Court is somewhat
wider than the one which was before the IPT, the applicants in the first of
the joined cases having complained about the receipt of information from
any foreign Government, the categories identified by the IPT are
nevertheless apposite. As the Government, at the hearing, informed the
Court that it was “implausible and rare” for intercept material to be obtained
“unsolicited”, the Court will restrict its examination to material falling into
the second and third categories.
418. Material falling within the second category can be divided into two
sub-categories: communications which the respondent State has asked a
foreign intelligence service to intercept; and communications already
intercepted by a foreign intelligence service, which are conveyed to the