BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
(a) The definition of the grounds that may justify the adoption of an
interception order, such as: detection of activities posing a threat to
national security or serious crime prevention, detection, or investigation,
in which case the offences that may trigger the interception must
correspond either to a list of specific serious offences or generally to
offences punishable by four or more years’ imprisonment108.
(b) A definition of the intercept subjects, in other words, the persons
or institutions who are liable to have their communications intercepted,
as follows:
(i) strict prohibition of data fishing or exploratory expeditions, to discover
“unknown unknowns”, including any form of non-targeted surveillance based on
non-specific selectors,
(ii) strict prohibition of use of strong selectors aimed at communications about the
targeted intercept subject,
(iii) admissibility of strong selectors aimed at the communications from and to the
targeted intercept subject when there is a reasonable suspicion that the intercept
subject is involved in the above-mentioned offences or activities.
(c) A catalogue of the forms of electronic communications that can
be intercepted, such as telephone, telex, fax, email, Google search,
browsing the Internet, social media and cloud storage.
(d) The observance of the principle of necessity, which requires
that:
(i) interference with the rights of the intercept subjects must adequately serve the
purposes pursued and go no further than is necessary to achieve those aims;
(ii) interception must be justified only as a measure of last resort, that is, when no
other means of obtaining evidence or information are available, because recourse to
other less intrusive methods has proven unsuccessful or, exceptionally, if other less
intrusive methods are deemed unlikely to succeed;
(iii) the interception must be tailored to avoid, as far as possible, targeting persons
or institutions that are not responsible for the above-mentioned offences or
activities; and
(iv) the interception must be immediately stopped when it no longer serves the
purposes pursued.
(e) The observance of the principle of proportionality, which
requires that:
For this purpose, other than the above-mentioned authorities in paragraph 8, I have also
taken into account the United Nations Compilation, cited above, 2010, the Venice
Commission report, cited above, 2015, and the FRA report, cited above, 2017.
108 Article 2 (b) of the UN Convention against Transnational Organized Crime defines
“serious crime” as conduct punishable by a maximum deprivation of liberty of at least four
years or a more serious penalty. The Explanatory Report on Recommendation Rec(2005)10
of the Committee of Ministers follows that reference.
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