BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
patently lacking in the detailed material necessary to make a full structural
analysis and assessment of bulk interception in the United Kingdom. It is
disappointing that the utmost sensitivity of the subject matter of this
judgment, which was repeatedly stressed by the Court, only served the
purpose of insisting on the need for the “effectiveness”12 and “flexibility”13
of the bulk interception system, but not that of collecting all the relevant
evidence needed for a factually sound Court judgment. This self-imposed
restriction on the Court’s power to collect evidence demonstrates that the
Strasbourg judges fail to consider the Court as a true judicial body, with the
power to order the parties to provide it with unlimited and unconditional
access to the evidence relevant to the subject matter of the case. As a
consequence, the Court made some “educated guesses” about the likely
degree of the interference with an individual’s rights at different stages of
the interception process. The problem of developing regulatory standards on
the basis of such “educated guesses” is that it reflects the regulator’s
assumptions and biases. And they are clear in the present case. The
Government’s case boils down to a simple proposition which is “trust us”.
The majority were ready to accept this proposition, with the risk of erring on
the side of over-collecting intelligence. I am not. As the United States
Presidential Review Board put it, “Americans must not make the mistake of
trusting officials”14. I would say the same for Europeans.
5. Second, the above-mentioned self-imposed evidential and
adjudicatory limitation leads the Court to assume the inevitability of bulk
interception and, even more so, that of a blanket, non-targeted, suspicionless
interception regime, as pleaded by the respondent State and the third parties
in both the present case and Centrum för rättvisa v. Sweden15. With circular
reasoning, the Government affirmed that bulk interception was incompatible
with a reasonable suspicion requirement, because it was, by definition,
untargeted, and it was untargeted because it did not require reasonable
suspicion16. The Court followed this lead and put it in axiomatic terms:
Paragraph 424 of this judgment.
Paragraph 353 of this judgment.
13 Paragraph 354 of this judgment.
14 “Liberty and Security in a Changing World”, Report and Recommendations of the
President’s Review Group on Intelligence and Communications Technologies,
12 December 2013, p. 114.
15 Centrum för rättvisa v. Sweden (no. 35252/08), delivered on the same day as the present
judgment. It is noticeable that the Governments of France, the Netherlands, and Norway
focused precisely on this point: according to them, there was no justification for adding a
reasonable suspicion requirement to bulk interception (paragraphs 301, 305 and 309 of this
judgment).
16 See the oral submission of the respondent Government in the Grand Chamber on 10 July
2019: “They [reasonable suspicion and subsequent notification] are fundamentally
incompatible with the operation of a regime which does not depend on the existence of
clearly defined surveillance targets. The section 8(4) regime, is, by its nature, an untargeted
regime. It exists to discover unknown national security and serious crimes threats. So
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