BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
authorities is conducted with a high level of secrecy, as a result of which, in
the words of the present judgment (see paragraph 322), little if any
information about the operation of the scheme is available and such
information as is available may be couched in terminology which is
obscure.
16. In respect of (b), the majority state that the eight criteria outlined in
paragraph 361 need to be clearly defined in the domestic legal framework.
While this is a requirement to be welcomed, in particular from the point of
view of foreseeability of the law, these criteria in themselves do not lay
down minimum requirements in respect of the substantive or procedural
conditions that need to be complied with in order to operate the bulk
interception regime and to pass from its initial stage to the more intrusive
ones. This flaw is partly remedied by the fact that certain (but not all) of
those elements discussed in paragraphs 348-360 of the judgment are set out
not only in descriptive passages referring to the existing case-law but also in
prescriptive wording laying down certain requirements, particularly in
respect of the authorisation of bulk interception in its specific stages.
However, we argue that the requirements set by the majority do not go far
enough in protecting an individual against arbitrary, excessive or abusive
interferences with his or her private life and correspondence.
17. This brings us to our point (c). In the context of targeted
interception, mostly for purposes of detecting and investigating criminal
activity, the Court has referred to certain substantive safeguards against
abuse. Thus, the Court has required that the nature of the offences which
may give rise to an interception order be defined together with the
categories of people liable to have their communications intercepted.
Furthermore, on numerous occasions, the Court has had recourse to the
requirement of reasonable suspicion. The majority simply consider that
these safeguards are not readily applicable to bulk interception. While we
can agree that they cannot be directly transposable, there remains a need for
robust substantive protection to be developed, whereby safeguards
developed in the framework of targeted interception for the purpose of
combatting crime can serve as an excellent source of inspiration, as we will
seek to explain below.
18. First, in contrast to targeted interception in crime prevention, bulk
interception is largely used for purposes of national security. It is difficult to
see why one should not expect the domestic legislation to clearly define the
possible national security threats and the circumstances in which those
threats may trigger bulk interception.
19. In respect of the second substantive requirement attached to targeted
interception, namely the definition of categories of people liable to have
their communications intercepted, one can acknowledge that a similar
requirement would make little sense in the first stage of bulk interception,
when all communications running through certain bearers are intercepted
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