BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
the substantive criteria for such an interference. However, if the substantive
criteria are vague, overly broad or even non-existent, the requirement of
prior authorisation will necessarily fail to provide for sufficiently effective
protection against arbitrariness and abuse.
23. In respect of the prior authorisation requirement, the judgment
requires such authorisation to be exercised at the initial stage by a body that
is independent from the executive. We can agree. However, we respectfully
but strongly disagree that it suffices for the application of strong selectors
relating to identifiable individuals to be subjected to a prior internal
authorisation alone. Instead, we argue that at this stage, prior judicial control
would be needed. While the existing case-law of the Court does not
necessarily require judicial authorisation for targeted interception of
communications of individuals, we believe that there are reasons for a
reinforced standard of protection in cases of application of strong selectors
in bulk interception. These reasons are as follows:
(a) Bulk interception, in contrast to targeted interception, is not limited
to a specific category of people, and thus a much larger pool of
communications is liable to be examined than in a case of targeted
communications.
(b) Furthermore, a strong selector pertaining to an identified individual
can, when applied, open the door to a much larger number of
communications, namely wherever that specific individual is referred to,
even if he or she has not engaged in those communications (as opposed to
communicating over the communication means that he or she personally
uses).
(c) In targeted interception for the purposes of law enforcement, a form
of judicial control will usually occur somewhere down the line. For
example, when evidence is obtained by targeted interception, it will be
submitted in subsequent criminal proceedings, such that a court conducting
those proceedings will be able to verify whether the targeted interception in
that case complied with legal requirements. No such subsequent judicial
control will normally occur in cases of bulk interception coupled with the
application of strong selectors.
24. In stark contrast with this view, the majority consider that prior
internal authorisation is sufficient. In our opinion, internal authorisation
cannot provide for a level of protection against arbitrariness and abuse
comparable to the protection offered by independent scrutiny. In particular,
it is hard to imagine how a person having an organisational and, possibly,
collegial connection with the requesting authority could properly assess a
request in a fair and disinterested manner. It is probable that authorisation
requirements will not be fully respected and, thus, the very purpose of this
safeguard will not be met. This is even more likely in those High
Contracting Parties where no long-standing tradition of democratic
oversight of intelligence services exists.
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