78
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
accompanying certificate set out the categories of communications which
might be examined, those categories were expressed in very general terms
(for example, “material providing intelligence on terrorism (as defined by
the Terrorism Act 2000 (as amended)), including, but not limited to,
terrorist organisations, terrorists, active sympathisers, attack planning, fundraising”). Given that the certificate was so generic, the ISC questioned
whether it needed to be secret or whether, in the interests of transparency, it
could be published.
157. Although the section 8(4) certificate set out the general categories
of information which might be examined, the ISC observed that in practice,
it was the selection of the bearers, the application of simple selectors and
initial search criteria, and then complex searches which determined what
communications were examined. The ISC had therefore sought assurances
that these were subject to scrutiny and review by Ministers and/or the
Commissioners. However, the evidence before the ISC indicated that
neither Ministers nor the Commissioners had any significant visibility of
these issues. The ISC therefore recommended that the Interception of
Communications Commissioner should be given statutory responsibility to
review the various selection criteria used in bulk interception to ensure that
they followed directly from the Certificate and valid national security
requirements.
158. The ISC noted that communications data was central to most
intelligence services’ investigations: it could be analysed to find patterns
that reflected particular online behaviours associated with activities such as
attack planning, and to establish links, to help focus on individuals who
might pose a threat, to ensure that interception was properly targeted, and to
illuminate networks and associations relatively quickly. It was particularly
useful in the early stages of an investigation, when the intelligence services
had to be able to determine whether those associating with a target were
connected to the plot (and therefore required further investigation) or were
innocent bystanders. According to the Secretary of State for the Home
Department, it had “played a significant role in every Security Service
counter-terrorism operation over the last decade”. Nevertheless, the ISC
expressed concern about the definition of “communications data”. While it
accepted that there was a category of communications data which was less
intrusive than content, and therefore did not require the same degree of
protection, it considered that there now existed certain categories of
communications data which had the potential to reveal more intrusive
details about a person’s private life and, therefore, required greater
safeguards.
159. Finally, with regard to the IPT, it expressly recognised the
importance of a domestic right of appeal.