(a) It is maintained that the privacy of the individual is intruded into not only
when material is read, analysed and shared with other authorities, but also
when it is collected, stored and filtered without human intervention.76
(b) The mere knowledge that the state has the ability to collect such material
(whether or not it is accessed) is said to give the state the whip hand over the
individual, and to suppress individual autonomy.
(c) There are concerns about the risk of abuse and unauthorised access that are
posed by holding vast quantities of data, particularly content, in one place.
(d) It is said not only that bulk interception is disproportionate, but that it is
impossible to have a meaningful assessment of proportionality at that level.
(e) It is suggested that bulk collection systems are not capable of providing
sufficient protection for material covered by LPP, material relating to
journalists and so on.77
2.28.
More fundamentally, it has been suggested on the basis of CJEU case law that
any bulk collection of the content of communications is per se unlawful.78
(2) Bulk Acquisition
Nature of bulk acquisition
76
77
78
79
2.29.
The second power under review is bulk acquisition, currently practised under TA
1984 s94, and provided for in Part 6 Chapter 2 of the Bill. Until the draft Bill was
published on 4 November 2015, the existence of the capability was an extremely
tightly-controlled secret.79
2.30.
Section 94 empowers the Secretary of State to give providers of public
telecommunications networks:
That is indeed the legal position. The UK’s Supreme Court, applying the law as declared by the
ECtHR, declared in 2015 that “the state’s systematic collection and storage in retrievable form
even of public information about an individual is an interference with private life”: Catt v MPC
per Lord Sumption at para 6. The position in the US is less clear.
A detailed critique is contained in the witness statements of Eric King in Privacy International v
Secretary of State for Foreign and Commonwealth Affairs and others, Case No. IPT/13/92/CH.
In Case C-362/14 Schrems v Data Commissioner ECLI:EU:C:2015:650, para 94, the CJEU
commented that “legislation permitting the public authorities to have access on a generalised
basis to the content of electronic communications must be regarded as compromising the
essence of the fundamental right to respect for private life ...”. The bulk interception regime
does allow for the collection of content in bulk, though the Government may be expected to
argue, if necessary, that access to that content is not granted on a generalised basis, and that
the distinction suggested by the CJEU is hardly a binary one, given that content is held for only
a few seconds under the procedure outlined at 2.19(a) above.
Though Gordon Corera, the BBC’s Security Correspondent, referred to the use of s94
directions for this purpose as “likely” in his book Intercept: the secret history of computers and
spies (Weidenfeld & Nicolson, June 2015), chapter 17 fn 6.
29