BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
243. In one additional State (Norway) a draft law is being debated: if
adopted, it will also authorise bulk interception.
244. Details of the Swedish system can be found in the judgment in the
case of Centrum för rättvisa v. Sweden (application no. 35252/08); and
details of the German system are set out at paragraphs 247-252 below.
245. As regards intelligence sharing agreements, at least thirty-nine
Contracting States have either concluded intelligence sharing agreements
with other States, or have the possibility for such agreements. Two
expressly prohibit and two expressly permit the State to ask a foreign power
to intercept material on their behalf. In the remaining States, the position on
this issue is not clear.
246. Finally, in most States the applicable safeguards are broadly the
same as for domestic operations, with various restrictions on the use of the
received data and in some cases an obligation to destroy them if they
became irrelevant.
B. Judgment of the German Federal Constitutional Court of 19 May
2020 (1 BvR 2835/17)
247. In this judgment, the Constitutional Court considered whether the
Federal Intelligence Service’s powers to conduct strategic (or “signals”)
intelligence on foreign telecommunications were in breach of the
fundamental rights contained in the Basic Law (Grundgesetz).
248. The regime in question involved the interception of both content
and related communications data and aimed only to monitor foreign
telecommunications outside of German territory. Such surveillance could be
carried out for the purpose of gaining information about topics determined
by the Federal Government’s mandate to be significant for the State’s
foreign and security policy. It could, however, also be used to target specific
individuals. The admissibility and necessity of the orders to conduct such
surveillance was controlled by an Independent Panel. According to the
Constitutional Court’s judgment, interception was followed by a multistage, fully automated filtering and evaluation process. For this purpose, the
Federal Intelligence Service used a six-digit number of search terms which
were subject to control by an internal sub-unit responsible for ensuring that
the link between the search terms employed and the purpose of the data
request was explained in a reasonable and comprehensive manner. After the
application of the automated filtering process, intercepted material was
either deleted or stored and sent for evaluation by an analyst.
249. The sharing of intercept material with foreign intelligence services
was accompanied by a cooperation agreement which had to include usage
restrictions and assurances to ensure that data were handled and deleted in
accordance with the rule of law.
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