BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
479. The French Government further submitted that in the context of
intelligence sharing the interference occurred not with the interception but
rather with the obtaining of information, even if the material was intercepted
at the behest of the receiving State. It noted the approach taken by the
Chamber in analysing the United Kingdom intelligence sharing regime and
invited the Grand Chamber to adopt the same approach.
480. In the Government’s view, the reliability of the receiving service
was one of the main criteria on which the sending State based its decision to
exchange data, and as a consequence the receiving State had to guarantee
the strict confidentiality of the information communicated to it. Therefore,
the guarantees required for the handling of intelligence collected through an
exchange of data with a partner service had to be in keeping with the “third
party rule”, which prohibited an agency which had received information
from a foreign partner from sharing it with a third party without the consent
of the originator. Without such an assurance, States might refuse to transfer
information.
(ii) The United Nations’ Special Rapporteur on the promotion of the right to
freedom of opinion and expression
481. The Special Rapporteur argued that the same standards should
apply to the acquisition of data from foreign intelligence services as applied
when the domestic authorities acquired data themselves. A contrary position
could lead State authorities to de facto outsource surveillance operations
circumventing the protections afforded in the ICCPR.
(iii) Access Now
482. Access Now contended that while Mutual Legal Assistance
Treaties (“MLATs”) offered a transparent and formal process for one State
party to request intelligence from another, the operation of secret signals
intelligence programmes (for example, the Five Eyes intelligence sharing
network of which the United Kingdom, the United States of America,
Australia, Canada and New Zealand were members) were not transparent
and were prohibited by international human rights standards. Such secret
programmes were not necessary, since the relevant intelligence could be
obtained under MLATs.
(iv) Dutch Against Plasterk (“Burgers tegen Plasterk”)
483. Dutch Against Plasterk, a coalition of five individuals and four
associations, were applicants in a case against the Netherlands in which they
sought to challenge the exchange of data between the Dutch authorities and
their foreign intelligence partners (including the United States and the
United Kingdom).
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