BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Saravia and Liberty and Others, both cited above), in the course of the
proceedings it has become apparent that the assessment of any such regime
faces specific difficulties. In the current, increasingly digital, age the vast
majority of communications take digital form and are transported across
global telecommunications networks using a combination of the quickest
and cheapest paths without any meaningful reference to national borders.
Surveillance which is not targeted directly at individuals therefore has the
capacity to have a very wide reach indeed, both inside and outside the
territory of the surveilling State. Safeguards are therefore pivotal and yet
elusive. Unlike the targeted interception which has been the subject of much
of the Court’s case-law, and which is primarily used for the investigation of
crime, bulk interception is also – perhaps even predominantly – used for
foreign intelligence gathering and the identification of new threats from
both known and unknown actors. When operating in this realm, Contracting
States have a legitimate need for secrecy which means that little if any
information about the operation of the scheme will be in the public domain,
and such information as is available may be couched in terminology which
is obscure and which may vary significantly from one State to the next.
323. While technological capabilities have greatly increased the volume
of communications traversing the global Internet, the threats being faced by
Contracting States and their citizens have also proliferated. These include,
but are not limited to, global terrorism, drug trafficking, human trafficking
and the sexual exploitation of children. Many of these threats come from
international networks of hostile actors with access to increasingly
sophisticated technology enabling them to communicate undetected. Access
to such technology also permits hostile State and non-State actors to disrupt
digital infrastructure and even the proper functioning of democratic
processes through the use of cyberattacks, a serious threat to national
security which by definition exists only in the digital domain and as such
can only be detected and investigated there. Consequently, the Court is
required to carry out its assessment of Contracting States’ bulk interception
regimes, a valuable technological capacity to identify new threats in the
digital domain, for Convention compliance by reference to the existence of
safeguards against arbitrariness and abuse, on the basis of limited
information about the manner in which those regimes operate.
(b) The existence of an interference
324. The Government do not dispute that there has been an interference
with the applicants’ Article 8 rights, although they submitted that for the
purposes of Article 8 of the Convention the only meaningful interference
could have occurred when communications were selected for examination.
325. The Court views bulk interception as a gradual process in which the
degree of interference with individuals’ Article 8 rights increases as the
process progresses. Bulk interception regimes may not all follow exactly the
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