BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
250. The Constitutional Court held that the regime in question was not
compliant with the Basic Law. While it acknowledged the overriding public
interest in effective foreign intelligence gathering, it nevertheless
considered, inter alia, that the regime was not restricted to sufficiently
specific purposes; it was not structured in a way that allowed for adequate
oversight and control; and various safeguards were lacking, particularly
with respect to the protection of journalists, lawyers and other persons
whose communications required special confidentiality protection.
251. Regarding the sharing of intelligence obtained through foreign
surveillance, the court again found the safeguards to be lacking. In
particular, it was not specified with sufficient clarity when weighty interests
might justify data transfers. In addition, while the court did not consider it
necessary for a recipient State to have comparable rules on the processing of
personal data, it nevertheless considered that data could only be transferred
abroad if there was an adequate level of data protection and there was no
reason to fear that the information would be used to violate fundamental
principles of the rule of law. More generally, in the context of intelligence
sharing, the court considered that cooperation with foreign States should not
be used to undermine domestic safeguards and if the Federal Intelligence
Service wished to use search terms provided to it by a foreign intelligence
service it should first confirm the existence of the necessary link between
the search terms and the purpose of the data request and that the resulting
data did not disclose a particular need for confidentiality (for example,
because they concerned whistle-blowers or dissidents). Although the court
did not exclude the possibility of the bulk transfer of data to foreign
intelligence services, it found that this could not be a continuous process
based on a single purpose.
252. Finally, the court found that the surveillance powers under review
also lacked an extensive independent and continual oversight serving to
ensure that the law was observed and compensating for the virtual absence
of safeguards commonly guaranteed under the rule of law. The legislator
had to provide for two different types of oversight, which had also to be
reflected in the organisational framework: firstly, a body resembling a court,
tasked with conducting oversight and deciding in a formal procedure
providing ex ante or ex post legal protection; and secondly, an oversight that
was administrative in nature and could, on its own initiative, randomly
scrutinise the entire process of strategic surveillance as to its lawfulness. In
the Constitutional Court´s view, certain key procedural steps would, in
principle, require ex ante authorisation by a body resembling a court,
namely: the formal determination of the various surveillance measures
(exemptions in cases of urgency were not ruled out); the use of search
terms, in so far as these directly targeted individuals who might pose a
danger and were thus of direct interest to the Federal Intelligence Service;
the use of search terms that directly targeted individuals whose
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