BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
contrary to the “amorphous soup” relied on by the Government (see
paragraph 288 below), the collected data were more akin to a “well
organised and indexed library in which you can rapidly find anything you
want”. The availability of automatic processing raised particularly severe
privacy concerns and did not, as the Government contended, minimise any
intrusion.
279. Should the Grand Chamber consider that the operation of a bulk
interception regime was within the State’s margin of appreciation, the
applicants argued that the section 8(4) regime was not in accordance with
the law. First of all, RIPA was unnecessarily complex, a fact acknowledged
by all the independent reviewers; so much so, in fact, that the true nature
and scope of the surveillance being undertaken had only become clear
following the Edward Snowden revelations. Moreover the “below the
waterline” arrangements had been established by GCHQ itself; were neither
accessible to nor approved by Parliament; were, as a matter of internal
policy, subject to change at the executive’s will; and were not binding. The
applicants therefore argued that they should play no part in the Court’s
analysis.
280. In assessing foreseeability, the applicants argued that changes in
both society and technology had resulted in a need for the Court to update
its existing approach – and enhance the necessary safeguards – to ensure
that Convention rights remained practical and effective. The Court’s
existing jurisprudence on bulk interception derived from the decision in
Weber and Saravia (cited above), but that decision dated back to 2006,
when the world was a different place. Smartphones were basic and had
limited functionality; Facebook was used mainly by university students; and
Twitter was in its infancy. Today people lived major parts of their lives
online, using the Internet to communicate, impart ideas, conduct research,
conduct relationships, seek medical advice, keep diaries, arrange travel,
listen to music, find their way around and conduct financial transactions.
Furthermore, modern technology generated an enormous amount of
communications data, which were highly revealing even if the related
content was not examined, and which were structured in such a way that
computers could process them and search for patterns in them faster and
more effectively than similar searches over content. For example, mobile
phones constantly generated communications data as they contacted the
mobile network, producing a record of the location of the phone, allowing
the user’s movements to be tracked, and revealing his or her Internet usage.
281. In the applicants’ view, the updated and enhanced safeguards
should include prior independent judicial authorisation of warrants, the
choice of selectors and the selection of intercepted material for examination.
In addition, where selectors or search terms referred to a specified
individual, there should be objective evidence of reasonable suspicion in
relation to that person. Finally, there should also be subsequent notification
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