BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
are also relevant to the interests of national security is not sufficiently
precise, allowing bulk interception to be used, for example, for economic
and industrial espionage and “trade war” purposes110.
37. The very general terms of the Secretary of State’s section 8(4)
certificates were also reproached, and correctly so, by the Intelligence and
Security Committee of Parliament (ISC)111.
38. The distinction between internal and external communications, as set
out in section 20 RIPA, is fundamentally defective and does not sufficiently
circumscribe the categories of people liable to have their communications
intercepted. As concluded by the ISC, this distinction was confusing and
lacked transparency112.
39. The Government’s justification for this distinction was that “[w]hen
acquiring intelligence on activities overseas, the Intelligence Services do not
have the same ability to identify targets or threats that they possess within
the UK”113. The IPT reiterated the argument, stating that “it was harder to
investigate terrorist and criminal threats from abroad”114. This justification
must be understood against the background of the 2014 Government’s
disclosures, which acknowledged that the requests for bulk material were
made to a foreign intelligence service “otherwise than in accordance with an
international mutual legal assistance agreement”115. Thus the impugned bulk
interception system was created to avoid the time-consuming and
resource-intensive procedures and “harder” obligations stemming from the
existing international law framework of mutual legal assistance, in other
words, to bypass safeguards under the existing system of international
mutual assistance treaties and to take advantage of its lack of regulation of
new transnational surveillance technologies.
40. Furthermore, with an increasing amount of communication being
treated as external116, and the exponential increase in bulk interception of
more and more communications of individuals who are in the British
Islands117, the external/internal communications distinction is simply not
See the interesting discussion between the parties during the Grand Chamber hearing on
10 July 2019 on this exact point. The Court has defended different views on the precision
of the purpose of national security (compare and contrast Iordachi and Others v. Moldova,
no. 25198/02, § 46, 10 February 2009, and Kennedy v the United Kingdom, cited above,
§ 159).
111 Paragraph 146 of this judgment.
112 Paragraph 145 of this judgment.
113 See the respondent Government’s observations before the Grand Chamber of 2 May
2019, p. 9.
114 Paragraph 51 of this judgment, which the Court reiterated in paragraph 375.
115 Paragraphs 36 and 116 of this judgment, which refers to paragraph 12.2 of the IC Code.
116 Paragraph 47 of this judgment.
117 As the respondent Government put it, “But the fact that electronic communications may
take any route to reach their destination inevitably means that a proportion of
communications flowing over a bearer between the UK and another State will consist of
‘internal communications’: i.e., communications between persons located in the British
110
190