BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
because of the inherent risk of abuse and because the legitimate need for
secrecy will inevitably mean that, for reasons of national security, States
will often not be at liberty to disclose information concerning the operation
of the impugned regime.
350. Therefore, in order to minimise the risk of the bulk interception
power being abused, the Court considers that the process must be subject to
“end-to-end safeguards”, meaning that, at the domestic level, an assessment
should be made at each stage of the process of the necessity and
proportionality of the measures being taken; that bulk interception should be
subject to independent authorisation at the outset, when the object and scope
of the operation are being defined; and that the operation should be subject
to supervision and independent ex post facto review. In the Court’s view,
these are fundamental safeguards which will be the cornerstone of any
Article 8 compliant bulk interception regime (see also the report of the
Venice Commission, at paragraph 197 above, which similarly found that
two of the most significant safeguards in a bulk interception regime were
the authorisation and oversight of the process).
351. Turning first to authorisation, the Grand Chamber agrees with the
Chamber that while judicial authorisation is an “important safeguard against
arbitrariness” it is not a “necessary requirement” (see paragraphs 318-320 of
the Chamber judgment). Nevertheless, bulk interception should be
authorised by an independent body; that is, a body which is independent of
the executive.
352. Furthermore, in order to provide an effective safeguard against
abuse, the independent authorising body should be informed of both the
purpose of the interception and the bearers or communication routes likely
to be intercepted. This would enable the independent authorising body to
assess the necessity and proportionality of the bulk interception operation
and also to assess whether the selection of bearers is necessary and
proportionate to the purposes for which the interception is being conducted.
353. The use of selectors – and strong selectors in particular – is one of
the most important steps in the bulk interception process, as this is the point
at which the communications of a particular individual may be targeted by
the intelligence services. However, while some systems allow for the prior
authorisation of categories of selectors (see, for example, the Swedish
system described in detail in the judgment in Centrum för rättvisa v. Sweden
(application no. 35252/08)), the Court notes that the Governments of both
the United Kingdom and the Netherlands have submitted that any
requirement to explain or substantiate selectors or search criteria in the
authorisation would seriously restrict the effectiveness of bulk interception
(see paragraphs 292 and 307 above). This was accepted by the IPT, which
found that the inclusion of the selectors in the authorisation would
“unnecessarily undermine and limit the operation of the warrant and be in
any event entirely unrealistic” (see paragraph 49 above).
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