BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
established for the targeting of journalists and other professionals whose
related communications data are legally privileged, as the Court accepts167,
why cannot it be set for the targeting of the related communications data of
the common mortal? Such approval systems operating in scale are perfectly
possible. The point is that large-scale interferences with privacy require a
large-scale system of safeguards.
57. Despite their degree of intrusiveness, both within and outside the
British Islands, the Court’s tolerance with these practices is
incomprehensible, bearing in mind that section 16(2) is considered, by the
Court itself, to be “the principal statutory safeguard circumscribing the
process of selecting intercept material for examination”168.
D. Preliminary conclusion
58. In sum, the fact that the scope of the surveillance activity considered
in Weber and Saravia (2006) and Liberty and Others (2008) was much
narrower than it is today should not have led the Court to be less demanding
as to the requisite level of protection of privacy rights at the present time.
The exponential increase of surveillance activity in the last decade and the
public outcry that it has unleashed warrants stricter oversight of the
intelligence agencies’ activities, for the sake of preserving democracy and
defending the rule of law. Not the opposite. When the risk of State abuse
increases, the Convention safeguards and corresponding domestic law
guarantees should increase too, not decrease169. In other words, the Court’s
standards today should be more exacting than those of 2006 or 2008. This is
exactly the opposite of what this judgment has delivered. In the present
judgment the Court has succumbed to the fait accompli of general bulk
interception, dangerously accepting that if it is useful it should be
permissible. Usefulness is not the same thing as necessity and
proportionality in a democratic society. As Justice Brandeis put it in
Olmstead v. United States170, “[i]t is also immaterial that the
Paragraph 450 of this judgment.
Compare and contrast §§ 420 and 421. Note that in § 420 the language is “the principal
statutory safeguard”, but in § 421 it is toned down to “an important safeguard”. The
imprecise language in § 421 is perplexing, but even more disturbing is the lack of
substance. The sheer manipulation of the language is instrumental for the Court’s different
weighting of the “concerns” raised in §§ 381 and 382 in the field of bulk interception of
related communications data. The cherry on the cake is evidently the “overall assessment”,
which allows the Court to reach whatever result it wants to reach (see my analysis of this
“overall fairness” criterion in my opinions appended to Muhammad and Muhammad
v. Romania [GC], no. 80982/12, 15 October 2020, and Murtazaliyeva v. Russia [GC],
no. 36658/05, 18 December 2018).
169 Szábo and Vissy, cited above, § 70: “The guarantees required by the extant Convention
case-law on interceptions need to be enhanced so as to address the issue of such
surveillance practices.” Likewise, PACE Resolution 2045(2015) insisted on the need for
reinforced oversight of mass surveillance.
167
168
199