BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
347. As with any interception regime, there is of course considerable
potential for bulk interception to be abused in a manner adversely affecting
the right of individuals to respect for private life. While Article 8 of the
Convention does not prohibit the use of bulk interception to protect national
security and other essential national interests against serious external
threats, and States enjoy a wide margin of appreciation in deciding what
type of interception regime is necessary, for these purposes, in operating
such a system the margin of appreciation afforded to them must be narrower
and a number of safeguards will have to be present. The Court has already
identified those safeguards which should feature in a Convention-compliant
targeted interception regime. While those principles provide a useful
framework for this exercise, they will have to be adapted to reflect the
specific features of a bulk interception regime and, in particular, the
increasing degrees of intrusion into the Article 8 rights of individuals as the
operation moves through the stages identified in paragraph 325 above.
(iii) The approach to be followed in bulk interception cases
348. It is clear that the first two of the six “minimum safeguards” which
the Court, in the context of targeted interception, has found should be
defined clearly in domestic law in order to avoid abuses of power (that is,
the nature of offences which may give rise to an interception order and the
categories of people liable to have their communications intercepted: see
paragraph 335 above), are not readily applicable to a bulk interception
regime. Similarly, the requirement of “reasonable suspicion”, which can be
found in the Court’s case-law on targeted interception in the context of
criminal investigations is less germane in the bulk interception context, the
purpose of which is in principle preventive, rather than for the investigation
of a specific target and/or an identifiable criminal offence. Nevertheless, the
Court considers it imperative that when a State is operating such a regime,
domestic law should contain detailed rules on when the authorities may
resort to such measures. In particular, domestic law should set out with
sufficient clarity the grounds upon which bulk interception might be
authorised and the circumstances in which an individual’s communications
might be intercepted. The remaining four minimum safeguards defined by
the Court in its previous judgments — that is, that domestic law should set
out a limit on the duration of interception, the procedure to be followed for
examining, using and storing the data obtained, the precautions to be taken
when communicating the data to other parties, and the circumstances in
which intercepted data may or must be erased or destroyed — are equally
relevant to bulk interception.
349. In its case-law on targeted interception, the Court has had regard to
the arrangements for supervising and reviewing the interception regime (see
Roman Zakharov, cited above, §§ 233-234). In the context of bulk
interception the importance of supervision and review will be amplified,
105