BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
intercepted, leaving the impression that bulk interception based on strong
selectors is less intrusive than the old-fashioned monitoring of an
individual’s devices.
C. Defective regime of safeguards
13. From this factually unfounded reasoning, the Court drew two legal
conclusions for “the approach to be followed in bulk interception cases”57:
domestic law does not have to identify the nature of the offences which may
give rise to an interception order and the categories of people whose
communications may be intercepted, and no requirement of a reasonable
suspicion is needed to ground such interception order58. According to the
Court’s logic, since “the purpose of [bulk interception] is in principle
preventive, rather than for the investigation of a specific target and/or an
identifiable criminal offence”59, none of the above two safeguards are
required in domestic law, even when bulk interception targets a specified
individual involved in an identifiable criminal offence. Thus, a general,
suspicionless interception order suffices to trigger bulk interception, be it
for the purposes of crime detection and investigation or others.
14. The Court’s position leaves many questions unanswered. What are
the admissible grounds for bulk interception? For example, is the
investigation of “serious criminal offences”, without any further precision,
an admissible ground? How serious should the crime investigated be? Is the
investigation of the theft of a wallet and a mobile telephone an admissible
ground?60 Is the promotion of economic and industrial espionage for the
sake of the economic well-being and national security of the intercepting
State an admissible ground?61 What are the admissible “circumstances” in
which an individual’s communications may be intercepted? To justify bulk
interception of an individual’s communications, what is the required degree
of interest of the individual’s communications for the purposes pursued by
the bulk interception order? Is it the individual suspicion standard
mentioned by Szábo and Vissy62 or the reasonable suspicion criterion
required by Roman Zakharov63? How can the Court require that domestic
law set out “with sufficient clarity”64 the grounds upon which bulk
Point (c) (iii) of the Court’s assessment.
Paragraph 348 of this judgment.
59 Ibid.
60 The example derives from the CJEU case-law (see paragraph 220 of the present
judgment).
61 The example derives from the sharp critique addressed by the European Parliament
Resolution of 12 March 2014 on the US NSA surveillance programme, the Venice
Commission report, cited above, p. 18, and the Council of Europe Human Rights
Commissioner’s Memorandum, cited above, p. 8.
62 Szábo and Vissy, cited above, § 71.
63 Roman Zakharov, cited above, §§ 260, 262 and 263.
57
58
178