BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
(i) a fair balance must be struck between the competing rights of the intercept
subjects and the purposes pursued, in accordance with the principle that the graver
the above-mentioned offences or activities and their past or future consequences, the
more intrusive and extensive the interception may be; and
(ii) in any event the interception must ensure that the essence (or minimum
core) of the rights of the intercept subjects is respected, such as the right to intimate
private life in the case of physical persons. Interception must cease as soon as it
becomes apparent that it is encroaching upon the core of private life.
(f) A limit on the duration of the interception order, which can be
extended one or more times after an assessment of the results of the
operation, but in any event with a maximum time-limit imposed for the
whole operation.
(g) End-to-end judicial oversight, which includes:
(i) authorisation of interception, including the specific bearers to be intercepted
and strong selectors to be used;
(ii) regular control of the implementation of the interception order, at
sufficiently short intervals, including extension of the duration of the interception
order and transmission of the data obtained to third parties; and
(iii) ex post facto review of the interception process and the data intercepted.
(h) In cases of urgency, a special interception order may be made by
a public prosecutor, but must be confirmed by a judge within a short
period of time.
(i) The procedure to be followed for examining, using, storing and
destroying the data obtained, with a detailed description of the scope of
the judge’s oversight during the implementation stage and after the
interception has ended and the documentation of the key steps of data
deletion in so far as this is necessary for the judge’s oversight.
(j) The conditions to be fulfilled and the precautions to be taken
when exchanging intercepted data with foreign intelligence services, as
follows:
(i) an absolute prohibition
circumventing the domestic rules;
from
outsourcing
surveillance
operations
(ii) an absolute prohibition for an intelligence authority which received data
from a foreign intelligence service from sharing it with a third party without the
consent of the originator, this rule not limiting the access of the domestic judge of
the receiving State to the transferred data;
(iii) an absolute prohibition from exchanging data with foreign intelligence
services which do not ensure a level of protection essentially equivalent to that
guaranteed by the Convention;
(iv) an absolute prohibition of bulk transfer of data to, or receipt from, a foreign
intelligence service in a continuous process based on a single purpose;
(v) judicial authorisation prior to every transfer/receipt of data in accordance
with the exact same principles and rules of domestic bulk interception, including,
among others, the observance of the principles of necessity and proportionality;
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