BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
therefore highly speculative, to say the least, to pretend that a system which
does not depend on notification of the intercept subject “may even offer
better guarantees of a proper procedure than a system based on notification”95.
No one cares more for the interests of the intercept subject than the subject
himself or herself.
28. Where, for some reason, such as the interests of national security, it
is not possible to notify the person whose communications have been
intercepted, there is realistically no way of the person learning of the
surveillance measure taken in his or her regard. In this case, it is imperative
to impose on the competent judge the burden of assessing, on his or her own
initiative (ex proprio motu) or on the initiative of a third party (for example,
a public prosecutor), the way in which the interception order was executed
with a view to determining whether the data in question was lawfully
collected and should be kept or destroyed; the intercept subject should then
be represented by a privacy lawyer.
29. Last but not least, human and financial oversight resources and
capabilities should match the scale of the operations being overseen,
otherwise the entire system will be a mere façade covering the discretionary
administrative process of the intercepting authorities.
B. Exchange of intercept data with foreign intelligence services
30. The Court has set a lower standard of protection for the transfer to
foreign intelligence services of data obtained through bulk interception.
First, the transferring State does not have an obligation to check whether the
receiving State has a comparable degree of protection to its own.
Furthermore, there is no need to require, prior to every transfer, an
assurance that the receiving State, in handing the data, will put in place
safeguards capable of preventing abuse and disproportionate interference96.
Thus the Court has not excluded the possibility of bulk transfer of data to a
foreign intelligence service in a continuous process based on a single
purpose. In view of this highly discretionary framework, it is not clear what
the “independent control” required by the Court consists of97. What is the
purpose of independent control if there is no need to assess the safeguards
put in place by the receiving State (including to the effect that it will
“guarantee the secure storage of the material and restrict its onward
disclosure”98) prior to every transfer? Is the independent control limited to
minimum requirement over and above the Weber and Saravia criteria. On the advantages
of the notification process “in curbing overuse”, see the Venice Commission report, cited
above, p. 35, and the reports of the Council of Europe Human Rights Commissioner on
Germany 2015, p. 17, and on the United Kingdom, 2016, cited above, p. 5.
95 Paragraph 358 of this judgment.
96 Paragraph 362 of this judgment.
97 Ibid.
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