BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
the authorising authority was independent of the executive, the supervisory
body was vested with sufficient powers and competence to exercise
effective and continuous control, and the two bodies were independent of
one another.
302. Finally, the intervening Government submitted that metadata were
by their nature less intrusive than content, as they clearly contained less
sensitive information about the behaviour and the private life of the person
concerned. This view was supported by the report of the Venice
Commission (see paragraphs 196-201 above) and the CJEU in Digital
Rights Ireland (see paragraphs 209-213 above).
(b) The Government of the Kingdom of the Netherlands
303. The Government of the Kingdom of the Netherlands also submitted
that bulk interception was necessary to identify hitherto unknown threats to
national security. In order to protect national security, intelligence services
needed the tools to investigate emerging threats in a timely and effective
manner. For this they needed the powers necessary to enable them to detect
and/or prevent not only terrorist activities (such as attack planning,
recruitment, propaganda and funding), but also intrusive State or non-State
actors’ cyber activities aimed at disrupting democracy (for example, by
influencing national elections or obstructing investigations by national and
international organisations. An example of this was the attempted hacking
of the investigation of the use of chemical weapons in Syria by the
Organisation for the Prohibition of Chemical Weapons in The Hague).
Moreover, the increasing dependency of vital sectors on digital
infrastructures meant that such sectors, including water management,
energy, telecoms, transport, logistics, harbours and airports, were
increasingly vulnerable to cyber-attacks. The consequences of disruption in
such sectors would have a deep impact on society, far beyond the
substantial monetary damage.
304. A complicating factor in all of this was the development of new
means of digital communication and the exponential increase of data that
were transmitted and stored globally. In many instances the nature and
origin of a particular threat was unknown and the use of targeted
interception was not feasible. However, while bulk interception was not as
tightly defined as targeted interception, it was never completely untargeted.
Rather, it was applied for specific aims.
305. In the intervening Government’s view, there was no need for
additional or updated minimum safeguards; those previously identified by
the Court were sufficiently robust and “future proof”. The additional
requirements proposed by the applicants before the Chamber – in particular,
the requirement to demonstrate “reasonable suspicion” – would
unacceptably reduce the effectiveness of the intelligence services without
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