contributions made by bulk powers could not have been replicated by other
means.254
9.15.
A useful recent report on surveillance by the EU’s Fundamental Rights Agency
quotes the formulation of a distinguished French lawyer which, it is said, “nicely
summarises the difference in approaches to targeted and untargeted
surveillance”:
“Instead of starting from the target to find the data, one starts with the data to
find the target.”255
It is correct that by anomaly detection and pattern analysis, bulk powers have a
unique capacity to reveal intelligence about a threat in the absence of any other
“seed”. But as this Report has demonstrated, the uses of bulk powers are not so
limited. The powers under review contribute (or, in the case of bulk EI, may be
expected to contribute) not only to target discovery, but to target development
and to the direction of operations and disruptive action. They are used
resourcefully: not mechanically, or in isolation, or for distinct tasks, but in
combination with each other and with other types of overt and covert intelligence.
Recommendation
9.16.
The making of recommendations in relation to safeguards is specifically
excluded from the remit of the Review.
9.17.
I have reflected on whether there might be scope for recommending the
“trimming” of some of the bulk powers, for example by describing types of
conduct that should never be authorised, or by seeking to limit the downstream
use that may be made of collected material. But particularly at this late stage of
the parliamentary process, I have not thought it appropriate to start down that
path. Technology and terminology will inevitably change faster than the ability of
legislators to keep up. The scheme of the Bill, which it is not my business to
disrupt, is of broad future-proofed powers, detailed codes of practice and strong
and vigorous safeguards. If the new law is to have any hope of accommodating
the evolution of technology over the next 10 or 15 years, it needs to avoid the
trap of an excessively prescriptive and technically-defined approach.
9.18.
I do however venture to make one major recommendation, again prompted by
the speed with which technology can change.256 It is as follows:
254
255
See 5.20-5.41 (bulk interception), 6.22-6.36 (bulk acquisition), 7.15-7.22 (bulk EI), and 8.158.24 (BPDs).
EU Agency for Fundamental Rights, Surveillance by intelligence services: fundamental rights
safeguards and remedies in the EU (2015), p.18, quoting M. Delmas-Marty, ‘La démocratie
dans les bras de Big Brother: Propos recueillis par Johannès, F.’, Le Monde, 4 June 2015.
124