BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
would accept that the storage provisions concerning related communications
data were sufficiently robust, even though they differed in substance from
the provisions relating to content. However, these retention periods were
only disclosed in the proceedings before this Court. Consequently, the
shorter retention periods were not evident to anyone reading the IC Code;
nor was there any indication in the IC Code that the retention periods for
related communications data were different from those in respect of content.
In the Court’s view, in order to meet the Article 8 requirement of
“foreseeability”, the retention periods disclosed in the proceedings before it
should be included in appropriate legislative and/or other general measures.
(4) Conclusion
424. The Court accepts that bulk interception is of vital importance to
Contracting States in identifying threats to their national security. This has
been recognised by the Venice Commission (see paragraph 196 above) and
was the position adopted by the respondent Government as well as the
Governments of France and the Netherlands in their third party
interventions (see paragraphs 300 and 303 above). It was also the
conclusion of the Independent Reviewer of Terrorism Legislation, who,
having examined a great deal of closed material, concluded that bulk
interception was an essential capability: first, because terrorists, criminals
and hostile foreign intelligence services had become increasingly
sophisticated at evading detection by traditional means; and secondly,
because the nature of the global Internet meant that the route a particular
communication would travel had become hugely unpredictable. Although
he and his team considered alternatives to bulk interception (including
targeted interception, the use of human sources and commercial
cyber-defence products), they concluded that no alternative or combination
of alternatives would be sufficient to substitute for the bulk interception
power (see paragraph 166 above).
425. Nonetheless, the Court recalls that there is considerable potential
for bulk interception to be abused in a manner adversely affecting the rights
of individuals to respect for private life (see paragraph 347 above).
Therefore, in a State governed by the rule of law, which is expressly
mentioned in the Preamble to the Convention and is inherent in the object
and purpose of Article 8 (see Roman Zakharov, cited above, § 228), the
Court considers that, when viewed as a whole, the section 8(4) regime,
despite its safeguards, including some robust ones as highlighted above
(see, for example, paragraphs 412 and 415 above), did not contain sufficient
“end-to-end” safeguards to provide adequate and effective guarantees
against arbitrariness and the risk of abuse. In particular, it has identified the
following fundamental deficiencies in the regime: the absence of
independent authorisation, the failure to include the categories of selectors
in the application for a warrant, and the failure to subject selectors linked to
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