BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
society, the freedoms of thought and conscience, speech and expression, and
freedom of religion, that are essential for self-governance. We cannot be
said to fully enjoy the freedoms that these rights are supposed to afford us if
our inner freedom is compromised.
8. But surveillance does not merely exert internal pressures on freedom.
To the extent that citizens retain their autonomy, it also exerts external
pressures on their freedom to exercise their civil rights. Just as living under
constant social control makes us less likely to act according to our feelings
and thoughts for fear of ostracism, living under constant government
surveillance can make citizens just a little more cautious when engaging
with their political convictions, a little less likely to freely associate, a little
less likely to speak freely, a little less likely to dissent, a little less likely to
run for public office. The aggregate effect of often merely marginal
inhibitions can stifle what was once a free society, especially as people
grow up in an environment of increased conformism and moral cowardice.
US Supreme Court Justice William O. Douglas, writing the dissent in
Osborn v. United States, impressionably describes as follows the threat that
mass surveillance poses to our democratic freedoms:
“... The time may come when no one can be sure whether his words are being
recorded for use at some future time; when everyone will fear that his most secret
thoughts are no longer his own, but belong to the Government; when the most
confidential and intimate conversations are always open to eager, prying ears. When
that time comes, privacy, and with it liberty, will be gone. If a man’s privacy can be
invaded at will, who can say he is free? If his every word is taken down and
evaluated, or if he is afraid every word may be, who can say he enjoys freedom of
speech? If his every association is known and recorded, if the conversations with his
associates are purloined, who can say he enjoys freedom of association? When such
conditions obtain, our citizens will be afraid to utter any but the safest and most
orthodox thoughts; afraid to associate with any but the most acceptable people.
Freedom as the Constitution envisages it will have vanished.”5
9. To conclude, the development of new technologies enabling mass
surveillance and more effective use of the information collected has
increased threats to privacy as well as the risk of abuse of personal data. It is
not our intention to assert that these threats and risks have already
materialised on a large scale or have brought about the consequences
discussed above. However, one should be properly aware of their existence
when designing a system capable of preventing, detecting and sanctioning
any abuse that might occur.
10. In our opinion, these considerations should have led the Court to
attach significantly more weight to private life in general, and to
confidentiality of correspondence in particular, when weighing them in the
balance against the legitimate interests of the respondent State in operating
its bulk interception scheme. Consequently, the Grand Chamber should
5
Osborn v. United States, 385 U.S. 323 (1966).
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