Grand Chamber ECtHR Judgment in Big Brother Watch and Others v. UK

On 25 May 2021 the Grand Chamber of the European Court of Human Rights handed down its judgment in the case of Big Brother Watch and others v. UK (BBW). The case concerned the lawfulness of the historic legal frameworks for bulk interception and targeted acquisition of communications data in the Regulation of Investigatory Powers Act 2000 (RIPA) as well as the receipt of intelligence from international partners.

Crucially, the judgment found that bulk interception is not in itself a violation of the European convention on human rights (ECHR) and indeed noted its critical importance as a tool for identifying threats to our national security. The judgment also endorsed the arrangements for international sharing of intelligence.

There were some deficiencies identified in the function of the regime under RIPA, most of which have already been rectified with the introduction of the Investigatory Powers Act 2016 (IPA), and I write today to set out how the Government plan to deal with the remaining issues.

First, the Court found that an application for a bulk interception warrant should set out the types or categories of selectors that may be liable for selection following interception to provide extra context to the decision maker approving the warrant. When the IPA came into force, it introduced a list of “operational purposes”, in effect the reasons for which an agency may select data for examination once obtained under a bulk warrant. The list is provided to the Intelligence and Security Committee of Parliament every three months and is reviewed by the Prime Minister every year.

The Government consider that these operational purposes are sufficient to satisfy the requirement imposed by the Court. Furthermore, my officials, in conjunction with those in the security and intelligence agencies, are undertaking a review of the operational purposes with this requirement in mind.

Secondly, the Court found that the use of certain “strong” selectors such as a personal email address or mobile telephone number clearly linking to an identified person, should be subject to prior internal authorisation, on top of the existing requirements to demonstrate each is used only where strictly necessary and proportionate in relation to bulk interception and is in accordance with all other applicable safeguards.

The security and intelligence agencies use strong selectors to select data acquired under bulk interception warrants under part 6, chapter 1 of the IPA. Where those strong selectors are applied to identifiable individuals, prior internal authorisation will be required. Plans to implement this additional step are already well-developed and are soon due to be incorporated into the systems used by the analysts within the security and intelligence agencies. This will be accompanied by additional guidance and training.

Thirdly, the Court ruled that in order to be compliant with article 10 ECHR, prior judicial authorisation should be sought where targeting with strong selectors using bulk interception will lead to the targeting of journalists or the acquisition and retention of confidential journalistic material. This additional robust safeguard will provide further enhancements to the protections for journalists and sources. My officials have been working with the security and intelligence agencies and with the Investigatory Powers Commissioners Office to establish the process for prior judicial authorisation and we will be making necessary changes to primary legislation and codes of practice in due course.

[HCWS759]