BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
any plausible justification159. In this regard, the oversight of the
IC Commissioner and the IPT, invoked by Government and the majority in
the Grand Chamber, was practically inoperative, in controlling intelligence
sharing from third-party intercept material no less than in overseeing
domestic surveillance, since the IPT’s intervention depended on a complaint
and the IC Commissioner had no power other than to make a report to the
Prime Minister to draw any serious error to his or her attention.
52. The absurd consequences of the majority’s reasoning are even more
patent in the following example: if one Londoner sends a message on
Twitter to another Londoner, and that communication is transmitted via a
server in the United States, the Court accepts that the interception by the
Government’s Communications Headquarters (GCHQ) of that message and
the related communications data, when it leaves the United Kingdom on a
cable bound for the United States, deserves the guarantee of independent
authorisation. But if the NSA intercepts that same message at the other end
of the same cable and then gives a copy to the GCHQ, or the
communications data relating to it, the guarantee of independent
authorisation does not apply. It is entirely arbitrary for there to be different
legal protections for the same data based only on the accidental location of
who carried out the initial interception. The absence of a statutory scheme
of safeguards for the use of intercept data from a foreign country that is
equally protective as that applying to intercept data collected in the home
country, means that the United Kingdom law is insufficient to protect
against arbitrariness and abuse160.
53. Furthermore, under paragraph 12.6 of the IC Code, sections 15 and
16 of RIPA did not apply to all material received from foreign intelligence
services that could be the product of bulk interception, but only to requested
intercept material or “where the material identifie[d] itself as the product of
intercept”, which left the triggering of the domestic guarantees of the
receiving State (the United Kingdom) dependent on a decision of the
foreign intelligence services.
54. The portrayal of the exchange of bulk material with other parties
would be incomplete without mentioning another noteworthy feature. It
should be added that paragraph 7.3 of the IC Code allowed for disclosure of
intercepted material to other parties in accordance with the mere
convenience of the service, an astonishingly simplistic criterion. The
“need-to-know principle”161 is the logical opposite of the necessity and
Unfortunately, the Court ignored the position of the Human Rights Committee in its
2015 Concluding observations on the United Kingdom, UN Doc. CCPR/C/GBR/CO/7,
17 August 2015, para. 24, where it voiced concern over the “lack of sufficient safeguards in
regard to obtaining of private communications from foreign security agencies and the
sharing of personal communications data with such agencies”.
160 This is exactly what the Venice Commission calls for (see paragraph 201 of this
judgment).
159
197