BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
indiscriminately. Yet the breadth of the interference should not be an excuse
for abandoning a particular safeguard. Additionally, at later stages of bulk
interception, particularly when strong selectors are applied for the purpose
of singling out and analysing the communications of an identified
individual, the situation becomes largely comparable to that of targeted
interception. Expecting the legal framework to define the categories of
people that can be targeted by the application of strong selectors would not
be an excessive, but rather a fully appropriate, requirement.
20. Third, the requirement of reasonable suspicion is an important
protection against arbitrary and disproportionate interferences with several
Convention rights. It refers to the probability that a criminal offence giving
rise to an interference has been committed or is about to be committed.
While bulk interception should not be used in crime investigation, but rather
confined to national security purposes, we believe that a standard similar to
reasonable suspicion should pertain to the grounds on which bulk
interception may be authorised. This is particularly true when bulk
interception starts targeting an identified individual through the application
of strong selectors. To be clear, we consider that in a democratic society
intelligence services may only inspect communications and related
communication data of an individual once they can demonstrate to an
objective observer that that individual may be engaged or is about to engage
in activities infringing a specific national security interest, or is a person
who is or may be in contact with individuals engaged in, or about to engage,
in such activities. No such or similar requirement has been introduced by
the majority in the present judgment.
21. Instead of these three safeguards, the majority have set an overly
broad substantive requirement, namely that the grounds on which bulk
interception may be authorised and the circumstances in which an
individual’s communications may be intercepted must be clearly defined in
the domestic legal framework. Unfortunately, the reference to “grounds”
and “circumstances” is rather vague, particularly in the absence of any
reference to what such grounds and circumstances may or may not be.
Furthermore, according to the language used in paragraph 361 of the
judgment, the specific requirement relating to the grounds only applies to
the stage of authorisation of bulk interception and not to any subsequent
stage, thereby giving no indication as to whether any substantive
requirement is attached, for example, to the application of strong selectors
targeting the communications of an identified individual.
22. The lack of appropriate substantive protection has an important
bearing upon the effectiveness of procedural protection. The main element
of procedural protection is the requirement of prior authorisation, which the
present judgment introduces both at the first stage of bulk interception and
before the application of strong selectors. The crucial point of any prior
authorisation is to verify whether the envisaged interference complies with
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