BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
“the requirement of ‘reasonable suspicion’, which can be found in the Court’s
case-law on targeted interception in the context of criminal investigations is less
germane in the bulk interception context, the purpose of which is in principle
preventive, rather than for the investigation of a specific target and/or an identifiable
criminal offence”17.
It follows from this new paradigm that the Court has departed from settled
case-law according to which it “does not consider that there is any ground to
apply different principles concerning the accessibility and clarity of the
rules governing the interception of individual communications, on the one
hand, and more general programmes of surveillance, on the other”18. Both
the German and the British bulk interception systems had already been
assessed by the Court under the exact same criteria applicable to targeted
interception: I refer to the generalised strategic surveillance under the G10
Act in Weber and Saravia v. Germany19, as well as the indiscriminate
collection of telecommunications sent or received outside the British Islands
under the Interception of Communications Act 1985 in Liberty and Others
v. the United Kingdom20 and the capturing of vast amounts of internal
communications under the Regulation of Investigatory Powers Act 2000 in
Kennedy v. the United Kingdom21. The Court has departed from the
fundamentals of this case-law without good reason, as I will demonstrate
below.
6. Moreover, the Court did not give proper weight to the fact that it had
restated and effectively applied the previous case-law in three recent cases
whose subject matter included, in one case tangentially and in the other two
specifically, non-targeted interception of communications. I am referring to
Roman Zakharov v. Russia22, Szábo and Vissy v. Hungary23 and Mustafa
Sezgin Tanrıkulu v. Turkey24. It is telling that Roman Zakharov v. Russia25
also used the Weber and Saravia criteria when dealing with operational
search activities, including interference with postal, telegraphic and other
communications, which could affect “any person using these mobile
telephone services”26, for the purposes of national, military, economic or
ecological security27. The Grand Chamber in that case went so far as to
reasonable suspicion simply could not be a part of it. Such requirement would cripple its
utility…”. At the end of the day, the argument boils down to the “utility” of suspicionless
massive bulk interception.
17 Paragraph 348 of this judgment.
18 Liberty and Others v. the United Kingdom, no. 58243/00, § 63, 1 July 2008.
19 Weber and Saravia v. Germany (dec.), no. 54934/00, §§ 95 and 114, ECHR 2006‑XI.
20 Liberty and Others, cited above, §§ 63-65.
21 Kennedy v. the United Kingdom, no. 26839/05, §§ 158-60, 18 May 2010.
22 Roman Zakharov v. Russia [GC], no. 47143/06, §§ 231 and 264, ECHR 2015.
23 Szábo and Vissy, cited above.
24 Mustafa Sezgin Tanrıkulu v. Turkey, no. 27473/06, 18 July 2017.
25 Roman Zakharov, cited above, §§ 231 and 264.
26 Ibid., §§ 175-178.
27 Ibid., §§ 31, 246-248.
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