BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
interception, the selectors used for filtering intercepted communications,
and the process by which analysts selected intercepted communications for
examination; and secondly, the absence of any real safeguards applicable to
the searching and selection for examination of related communications data.
In view of the independent oversight provided by the Interception of
Communications Commissioner (“the IC Commissioner”) and the IPT, and
the extensive independent investigations which followed the Edward
Snowden revelations, the Chamber was satisfied that the United Kingdom
was not abusing its bulk interception powers. Nevertheless, in view of the
above-mentioned shortcomings, it held, by a majority, that the bulk
interception regime did not meet the “quality of law” requirement and was
incapable of keeping the “interference” to what was “necessary in a
democratic society”.
2. The parties’ submissions
(a) The applicants
277. The applicants contended that bulk interception was in principle
neither necessary nor proportionate within the meaning of Article 8 of the
Convention and, as such, did not fall within a State’s margin of
appreciation. Szabó and Vissy v. Hungary, no. 37138/14, 12 January 2016
suggested that a secret surveillance measure had to be “strictly necessary”
for safeguarding democratic institutions and obtaining vital intelligence, and
it had not been demonstrated that bulk interception satisfied this test. While
it was undoubtedly a useful capability, it was clear from the Court’s caselaw that not everything that was useful to the intelligence services was
permissible in a democratic society (see S. and Marper v. the United
Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008).
278. According to the applicants, separate interferences with the
Article 8 right to respect for private life and correspondence occurred with
the interception of a communication (content and/or related communications
data); its storage; its automated processing; and its examination. While they
agreed that a “substantial” interference occurred when intercepted
communications were examined, they believed it was wrong to suggest that
no “meaningful” interference occurred before this point. On the contrary,
the Court’s case-law indicated that even the storage of personal information
by the State amounted to a serious interference with an individual’s rights
under Article 8 of the Convention (see, for example, Rotaru v. Romania
[GC], no. 28341/95, ECHR 2000 V and S. and Marper, cited above). This
was especially so when the data were subject to automated processing. In
fact, as processing power and machine learning advanced rapidly, the
storage and electronic processing of data could by itself be highly intrusive,
without any underlying content or related communications data being
viewed by an individual. In this regard, the applicants contended that,
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