BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
have (a) accurately identified and attached proper weight to interferences
with private life and correspondence; (b) introduced clear minimum
safeguards capable of protecting individuals against arbitrary or excessive
interference; and consequently (c) assessed the impugned bulk interception
scheme in a stricter manner.
II. INTERFERENCES
CORRESPONDENCE
WITH
PRIVATE
LIFE
AND
11. In paragraph 325 of the judgment, the majority describe the stages of
the bulk interception system. They consider that the initial stage, described
as the interception and initial retention of communications and related
communications data, followed by the immediate discarding of parts of the
communications, “does not constitute a particularly significant interference”
(paragraph 330 of the judgment). We respectfully disagree. It is our belief
that at this stage already, the interference is significant. First, by interception
and initial retention, all communications of any individual flowing through
selected bearers and all related communications data come into the hands of
State authorities. Secondly, while it is true that at this stage, the content of
those communications has not yet been analysed or brought to the attention
of decision makers and thus cannot yet lead to any action being taken
against a particular individual, the first stage is a sine qua non for any
further stage. The exact extent of the communications and related data
thereby gathered by the intelligence services is unknown. But there are
reasons to believe that, on a regular basis, a large part of the
communications of millions of individuals is intercepted. This situation is
aggravated by the fact that the individuals concerned will, as a rule, not be
aware of this interference. In such a situation, when people cannot know
whether their communications are being targeted, but are aware that there
exists a strong probability that this is happening, a third element of
interference arises: people may adapt their behaviour, with many a serious
consequence, as described above in paragraphs 3-8 of this separate opinion.
12. According to paragraph 330 of the judgment, parts of intercepted
communications are discarded immediately. The Court is not in possession
of any information as to how this “discarding” is performed. One may
reasonably assume that it is not conducted randomly without any internal
logic and that in this exercise, intelligence services apply certain criteria
which separate rubbish from possibly useful material. The very fact that this
act is performed in obscurity and on an unknown basis should, in our
opinion, be a matter of serious concern. Such a lack of transparency, at the
very least, can hardly meet the requirement of foreseeability, this in turn
being one of the preconditions for the lawfulness of any interference with
the rights protected by Article 8 of the Convention. Yet the majority fail to
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