BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
484. In their third party intervention before this Court, the coalition
argued that the sharing of intelligence should only be permitted if it was
accompanied by sufficient safeguards and the foreign authority had a sound
legal basis for capturing the material. Otherwise, there could be a
circumvention of the protection provided by Article 8 of the Convention.
States should not be allowed to obtain material from foreign authorities that
they could not lawfully capture themselves.
(v) Center for Democracy and Technology (“CDT”) and Pen American Center
(“PEN America”)
485. CDT and PEN America argued that the circumstances of
international cooperation in bulk data and communications surveillance
required that at least three conditions were met: that States actively assessed
and satisfied themselves as to the adequacy of their foreign partners’ legal
and administrative framework governing interception, and set out these
adequacy measures in domestic law; that there was independent – preferably
judicial – authorisation, based on a finding of reasonable suspicion, for the
use of selectors identifiable to specific targets to query information obtained
from foreign partners; and that there was a requirement of subsequent
notification to the surveillance subjects.
486. CDT and PEN America submitted that the interception regimes
operated by the NSA – most notably, under section 702 of FISA and
Executive Order 12333 – would satisfy neither the “in accordance with the
law” nor the “proportionality” requirements of Article 8 of the Convention,
and these deficiencies tainted the lawfulness of the United Kingdom’s
intelligence sharing regime.
(vi) European Network of National Human Rights Institutions (“ENNHRI”)
487. The ENNHRI provided examples from Contracting States which in
their view showed that the nature of international intelligence sharing had
changed significantly so that it had become difficult to distinguish between
“solicited” and “unsolicited” data. Historically, international intelligence
sharing had involved the transfer of evaluated data, or finished intelligence.
However, the advent of new technology had resulted in the increasing
exchange of unevaluated “raw” data. Even where there was an agreement
governing bilateral or multilateral intelligence co-operation the advent of
automation and big data made it much more challenging to evaluate what
one party received from another, including whether the information
remained within the parameters of the original request. Consequently, there
was a need for robust independent oversight of international intelligence
sharing without distinction between solicited and unsolicited data. Oversight
bodies should be legally mandated to oversee all matters of international
cooperation by their intelligence services; cooperate with independent
145