“.. it is a natural consequence of the forms taken by present-day terrorism that
governments resort to cutting-edge technologies in pre-empting such attacks,
including the massive monitoring of communications susceptible to containing
indications of impending incidents”,
and added that “[t]he techniques applied in such monitoring operations have
demonstrated a remarkable progress in recent years”, before emphasising the
need for a commensurate development of legal safeguards.180
(9) Assessments of the Court of Justice of the European Union
3.81.
In the 2014 case of Digital Rights Ireland, discussed at length in AQOT 5.635.74, the CJEU declared invalid the Data Retention Directive, but was
nonetheless prepared to assume that the bulk collection of communications data
was of utility. It stated that:
(a) data retained under the Directive was “a valuable tool for criminal
investigations” which afforded the authorities “additional opportunities to shed
light on serious crime”; and that
(b) the fight against serious crime was potentially dependent for its effectiveness
on “the use of modern investigation techniques”.181
3.82.
The value of that assumption is obviously limited, since (like the conclusions of
the ECtHR) it was not based on the examination of security-cleared evidence.
The scheme under the Directive is in any event not one of the powers under
review, though it has similarities with bulk acquisition (2.29-2.45 above). The
assumption of the CJEU is however supported by my own conclusions, based on
evidence I had seen in the UK and in Germany and on published material:
AQOT 14.14-14.22 and Annexes 10-14.
3.83.
180
181
The legal challenge to DRIPA 2014 brought by David Davis MP and Tom
Watson MP (from which the former withdrew on his appointment to the
Government) has not yet produced a judgment from the CJEU. But an Advocate
General, a member of that court tasked with advising the judges on how they
should rule, produced an opinion in July 2016 in which he expressed himself to
Ibid., para 68. Cf. the approach of the European Commission for Democracy through Law
(Venice Commission), which in its report of April 2015 accepted the utility of what it called
“strategic surveillance”, particularly for target development, and stressed the need for strong
oversight: AQOT 14.44(b). In its recent report on the Bill, the Joint Committee on Human
Rights expressed the view that “[o]n the current state of the ECHR case-law, we do not
consider the bulk powers in the Bill to be inherently incompatible with the right to respect for
private life, but capable of being justified if they have a sufficiently clear legal basis, are shown
to be necessary, and are proportionate in that they are accompanied by adequate safeguards
against arbitrariness”: “Legislative Scrutiny: Investigatory Powers Bill” (HL Paper 6, HC 104, 2
June 2016).
Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and others
ECLI:EU:C:2014:238, paras 49 and 51.
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