BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
13
no. 18601/91, 2 April 1993 and Kennedy v. the United Kingdom,
no. 26839/05, 18 May 2010); the absence of targeting at the interception
stage was acceptable and inevitable, as it had been in Weber; on their face,
the provisions of paragraph 5.2 of the Interception of Communications Code
of Practice, together with paragraphs 2.4, 2.5, 5.3, 5.4, 5.5 and 5.6 were
satisfactory; there was no call for search words to be included in an
application for a warrant or in the warrant itself, as this would unnecessarily
undermine and limit the operation of the warrant and might in any event be
entirely unrealistic; and there was no requirement for the warrant to be
judicially authorised.
45. In considering the third, fourth, fifth and sixth of the Weber criteria,
the IPT had regard to the safeguards in sections 15 and 16 of RIPA, the
Interception of Communications Code of Practice, and the “below the
waterline arrangements”. It did not consider it necessary that the precise
details of all the safeguards should be published or contained in either
statute or code of practice. Particularly in the field of national security,
undisclosed administrative arrangements, which by definition could be
changed by the Executive without reference to Parliament, could be taken
into account, provided that what is disclosed indicated the scope of the
discretion and the manner of its exercise. This was particularly so when, as
was the case here, the Code of Practice itself referred to the arrangements,
and there was a system of oversight (being the Commissioner, the IPT itself,
and the ISC) which ensured that these arrangements were kept under
review. The IPT was satisfied that, as a result of what it had heard at the
closed hearing and the 9 October disclosure as amended, there was no large
databank of communications data being built up and that there were
adequate arrangements in respect of the duration of the retention of data and
its destruction. As with the PRISM issue, the IPT considered that the
section 8(4) arrangements were sufficiently signposted in statute, in the
Code of Practice, in the Interception of Communications Commissioner’s
reports and, now, in its own judgment.
46. As regards the fourth and final question, the IPT did not make any
finding as to whether there was in fact indirect discrimination on grounds of
national origin as a result of the different regimes applicable to individuals
located in the British Islands and those located outside, since it considered
that any indirect discrimination was sufficiently justified on the grounds that
it was harder to investigate terrorist and criminal threats from abroad. Given
that the purpose of accessing external communications was primarily to
obtain information relating to those abroad, the consequence of eliminating
the distinction would be the need to obtain a certificate under section 16(3)
of RIPA (which exceptionally allowed access to material concerning
persons within the British Islands intercepted under a section 8(4) warrant –
see paragraph 80 below) in almost every case, which would radically
undermine the efficacy of the section 8(4) regime.