BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
cited above, § 236 and Kennedy, cited above, § 155), the Court will examine
whether the domestic legal framework clearly defined:
1. the grounds on which bulk interception may be authorised;
2. the circumstances in which an individual’s communications may be
intercepted;
3. the procedure to be followed for granting authorisation;
4. the procedures to be followed for selecting, examining and using
intercept material;
5. the precautions to be taken when communicating the material to
other parties;
6. the limits on the duration of interception, the storage of intercept
material and the circumstances in which such material must be
erased and destroyed;
7. the procedures and modalities for supervision by an independent
authority of compliance with the above safeguards and its powers to
address non-compliance;
8. the procedures for independent ex post facto review of such
compliance and the powers vested in the competent body in
addressing instances of non-compliance.
362. Despite being one of the six Weber criteria, to date the Court has
not yet provided specific guidance regarding the precautions to be taken
when communicating intercept material to other parties. However, it is now
clear that some States are regularly sharing material with their intelligence
partners and even, in some instances, allowing those intelligence partners
direct access to their own systems. Consequently, the Court considers that
the transmission by a Contracting State to foreign States or international
organisations of material obtained by bulk interception should be limited to
such material as has been collected and stored in a Convention compliant
manner and should be subject to certain additional specific safeguards
pertaining to the transfer itself. First of all, the circumstances in which such
a transfer may take place must be set out clearly in domestic law. Secondly,
the transferring State must ensure that the receiving State, in handling the
data, has in place safeguards capable of preventing abuse and
disproportionate interference. In particular, the receiving State must
guarantee the secure storage of the material and restrict its onward
disclosure. This does not necessarily mean that the receiving State must
have comparable protection to that of the transferring State; nor does it
necessarily require that an assurance is given prior to every transfer.
Thirdly, heightened safeguards will be necessary when it is clear that
material requiring special confidentiality – such as confidential journalistic
material – is being transferred. Finally, the Court considers that the transfer
of material to foreign intelligence partners should also be subject to
independent control.
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