BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
provide the same degree of protection in this case103. On the one hand it
requires that “the aforementioned safeguards [be] in place”, referring to
those provided for in paragraph 361 of the judgment, but on the other hand
it admits that member States have the discretion to pick and choose which
specific safeguards should be enshrined in the domestic law, since “legal
provisions governing ... treatment [of related communications data] may not
necessarily have to be identical in every respect to those governing the
treatment of content”104. The Court’s blurred message is so ambiguous that
it provides no proper guidance to the States as to which of the
“aforementioned safeguards” are mandatory, if any, for bulk interception of
related communications data. Consequently, the Court’s hesitant stance
does not allay the risk of mapping of a person’s entire social life that the
Court itself has identified.
D. Preliminary conclusion
33. I do not agree that “States enjoy a wide margin of appreciation in
deciding what type of interception regime is necessary, for these purposes
[to protect national security and other essential national interests against
serious external threats], [but] in operating such a system the margin of
appreciation afforded to them must be narrower”105. If the boundaries of
State discretion are wide, even the most stringent policing of them does
little to safeguard against abuse. The margin of appreciation must be the
same, both for designing the system and for operating it, and this margin is
a narrow one, in view of the deeply intrusive nature of the State surveillance
powers in question, the inherently high risk of abuse of these powers and –
not to be forgotten – the European consensus on the prohibition of
non-targeted bulk interception. This risk is magnified by some securityobsessed governments with an unlimited appetite for data which now have
the technological means to control worldwide digital communication.
34. In sum, domestic law must be sufficiently clear in its terms to give
individuals and legal persons106 an adequate indication of the mandatory
conditions and multi-layered procedures according to which the authorities
are empowered to resort to bulk interception; these conditions and
procedures include the following107:
Ultimately, the Court was sensitive to the Government’s threat, according to which “if
member states operating bulk interception regime were required to apply the same
protections to RCD [related communications data], as to content, then the likely result
would simply be a watering down of the protection of content.” (respondent Government’s
Observations before the Grand Chamber of 2 May 2019, p. 42).
104 Paragraph 364 of this judgment in conjunction with paragraph 361.
105 Paragraph 347 of this judgment.
106 In Liberty and Others, cited above, all the claimants were NGOs arguing that their right
to protection of their correspondence had been breached. These rights are also engaged in
the present case.
103
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