BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
25. We note that the Governments of the United Kingdom and the
Netherlands have submitted that any requirement to explain or substantiate
selectors or search criteria would seriously restrict the effectiveness of bulk
interception (paragraph 353 of the judgment) and that the majority show
some sympathy for this argument (paragraph 354 of the judgment). We
cannot subscribe to this argument. We believe that in a democratic society,
communications and related communications data of an identified
individual may not be singled out and examined without that individual’s
consent unless very convincing reasons exist to do so. If an intelligence
service or other authority is not able to articulate such reasons and
demonstrate them before an independent institution, this should simply
mean that it ought not to have any access to such communications. We
acknowledge that occasionally a situation may arise where the regular
authorisation process is too cumbersome to effectively neutralise a threat to
national security, and that other solutions should be provided in this respect.
However, if a robust authorisation system designed to properly protect
human rights is perceived as an unnecessary hurdle, democratic society
should be put on notice.
IV. ASSESSMENT OF THE BULK INTERCEPTION REGIME AT
HAND
26. We agree with the other members of the Grand Chamber in their
findings in points 1, 2 and 4 of the operative part of the judgment. That said,
we believe that the assessment of certain features of the impugned regime
does not go far enough and fails to properly identify some of its
shortcomings.
27. As an example, we wish to direct the reader’s attention to the
grounds on which bulk interception could be authorised under the
UK system (paragraphs 368-371 of the judgment). A bulk interception
warrant could be issued if this was necessary (a) in the interests of national
security; (b) for the purpose of preventing or detecting serious crime; or (c)
for the purpose of safeguarding the economic well-being of the United
Kingdom in so far as those interests were also relevant to the interests of
national security.
28. The purposes under (a) and (c) both made reference to interests of
national security. It appears that neither national security nor its interests
were anywhere defined. While we take note of the judgment’s reference to
the IC Commissioner’s clarification of how practice perceived the term
“national security” (paragraph 369 of the judgment), we argue that this
clarification remained insufficient from the point of view of the
foreseeability requirement. Furthermore, we have doubts as to whether the
IC Commissioner’s clarification can be assimilated to well established
case-law which, according to the Court’s jurisprudence, may compensate
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