BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(e) Access Now
315. Access Now submitted that the mass surveillance at issue in the
present case failed to comply with the ICCPR and the International
Principles on the Application of Human Rights to Communications
Surveillance since the United Kingdom had not demonstrated that such
surveillance was strictly necessary or proportionate. They further contended
that surveillance programmes should not be considered independently but
should instead be viewed in relation to the entirety of a nation’s surveillance
activities as machine learning, through which mathematical algorithms
could draw inferences from collections of data, had increased the
invasiveness of big data sets and data mining.
(f) Article 19
316. Article 19 submitted that the indiscriminate and suspicionless
collection, analysis and retention of individuals’ communications was
inherently disproportionate. In Article 19’s opinion, only targeted
surveillance based on reasonable suspicion and authorised by a judge would
constitute a legitimate restriction on privacy rights.
(g) European Digital Rights (“EDRi”) and other organisations active in the
field of human rights in the information society
317. EDRi and others argued that the present case offered the Court a
crucial opportunity to revise its framework for the protection of metadata.
Governments had built their surveillance programmes based on the
distinction drawn between content and metadata in Malone v. the United
Kingdom, 2 August 1984, Series A no. 82, but at the time that case was
decided neither the Internet nor mobile phones existed. Today, metadata
could paint a detailed and intimate picture of a person: they allowed for
mapping of social networks, location tracking, Internet browsing tracking,
mapping of communication patterns, and insight into who a person
interacted with. Moreover, the level of detail that could be gleaned was
magnified when analysed on a large scale. Indeed, Stewart Baker, general
counsel of the NSA, had indicated that metadata could disclose everything
about someone’s life, and that if you had enough metadata, you would not
need content. As a result, different degrees of protection should not be
afforded to personal data based on the arbitrary and irrelevant distinction
between content and metadata, but rather on the inferences that could be
drawn from the data.
(h) Open Society Justice Initiative (“OSJI”)
318. OSJI submitted that both the amount of data available for
interception today and governments’ appetite for data far exceeded what
was possible in the past. Consequently, bulk interception was a particularly
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