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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
2. Warrants: section 8(4)
(a) Authorisation
67. “Bulk interception” of communications is carried out pursuant to a
section 8(4) warrant. Section 8(4) and (5) of RIPA allows the Secretary of
State to issue a warrant for “the interception of external communications in
the course of their transmission by means of a telecommunication system”.
68. At the time of issuing a section 8(4) warrant, the Secretary of State
must also issue a certificate setting out a description of the intercepted
material which he considers it necessary to examine, and stating that he
considers the examination of that material to be necessary for the reasons set
out in section 5(3) (that is, that it is necessary in the interests of national
security, for the purpose of preventing or detecting serious crime, or for
safeguarding the economic well-being of the United Kingdom).
(b) “External” communications
69. Section 20 defines “external communication” as “a communication
sent or received outside the British Islands”.
70. In the course of the Liberty proceedings, Charles Farr, the Director
General of the OSCT, indicated that two people in the United Kingdom who
email each other are engaging in “internal communication” even if the email
service was housed on a server in the United States of America; however,
that communication may be intercepted as a “by-catch” of a warrant
targeting external communications. On the other hand, a person in the
United Kingdom who communicates with a search engine overseas is
engaging in an external communication, as is a person in the United
Kingdom who posts a public message (such as a tweet or Facebook status
update), unless all the recipients of that message are in the British Islands.
71. Giving evidence to the Intelligence and Security Committee of
Parliament in October 2014, the Secretary of State for the Foreign and
Commonwealth considered that:
“• In terms of an email, if one or both of the sender or recipient is overseas then this
would be an external communication.
• In terms of browsing the Internet, if an individual reads the Washington Post’s
website, then they have ‘communicated’ with a web server located overseas, and that
is therefore an external communication.
• In terms of social media, if an individual posts something on Facebook, because
the web server is based overseas, this would be treated as an external communication.
• In terms of cloud storage (for example, files uploaded to Dropbox), these would
be treated as external communications, because they have been sent to a web server
overseas.”