BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
and they do it mainly for the prevention, detection and investigation of such
crimes as terrorism, espionage, cyber-attacks and, more vaguely, “serious
crimes”53, as shown by the above-mentioned authoritative Council of
Europe and European Union documents, the Szábo and Vissy and Mustafa
Sezgin Tanrıkulu judgments of this Court and the relevant case-law of the
CJEU. Foreign intelligence gathering is only one among other purposes, and
the Court does not have the minimum element of statistical or other
evidence of how this purpose is pursued, whether based on monitoring of
specific targets or otherwise. Even assuming, for the sake of the discussion,
that foreign intelligence gathering is mainly pursued by means of nontargeted bulk interception, this does not necessarily imply that all bulk
interception, including bulk interception with purposes related to crime
detection and investigation, should be non-targeted. Otherwise, what
happens is that bulk interception becomes a loophole to avoid the
protections of an individual warrant in circumstances where such a warrant
would be perfectly suited to acquiring the communications at issue. Having
said that, nothing precludes the possibility that foreign intelligence
gathering itself may be pursued by means of bulk interception based on a
requirement of reasonable suspicion of the involvement of the targeted
person or group of persons involved in activities harmful to national
security, even if they are not criminal offences54.
12. The third argument deals precisely with this fine line between
old-fashioned targeted interception and the new forms of bulk interception
used to target specified individuals, and it is the weakest argument of the
Court. In the case of interception by means of strong selectors, the Court
argues that the “targeted individuals’ devices are not monitored”,55 and
therefore bulk interception does not require the same guarantees as classical
targeted interception. This is not convincing. The automatic collection and
processing by means of strong selectors permitting the acquisition of
electronic communications to, from or about the target across the bearers
chosen by the intelligence services is a potentially much more intrusive
form of interference with Article 8 rights than the mere monitoring of the
targeted individuals’ devices56. It is thus misleading to say that “only”
(§ 346) those packets of the targeted individuals’ communications will be
Paragraph 345 of this judgment. I refer here to the critique addressed to this concept of
“serious crime” by the CJEU (see paragraph 212 of this judgment).
54 See the Venice Commission report on the democratic oversight of signals intelligence
agencies, 2015, p. 9, 25 and 26 (“there must be concrete facts indicating the criminal
offence/security-threatening conduct, and the investigators must have ‘probable cause’,
‘reasonable suspicion’ or satisfy some similar test”), and the Council of Europe Human
Rights Commissioner’s Memorandum, cited above, p. 6.
55 Paragraph 346 of this judgment.
56 As the CJEU explained in its Digital Rights Ireland judgment, cited above, § 55: “the
need for … safeguards is all the greater where … personal data are subjected to automatic
processing”.
53
177