LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
25
order; a definition of the categories of people liable to have their telephones tapped; a
limit on the duration of telephone tapping; the procedure to be followed for
examining, using and storing the data obtained; the precautions to be taken when
communicating the data to other parties; and the circumstances in which recordings
may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above,
p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 192425, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).”
63. It is true that the above requirements were first developed by the
Court in connection with measures of surveillance targeted at specific
individuals or addresses (the equivalent, within the United Kingdom, of the
section 3(1) regime). However, the Weber and Saravia case was itself
concerned with generalised “strategic monitoring”, rather than the
monitoring of individuals (cited above, § 18). The Court does not consider
that there is any ground to apply different principles concerning the
accessibility and clarity of the rules governing the interception of individual
communications, on the one hand, and more general programmes of
surveillance, on the other. The Court’s approach to the foreseeability
requirement in this field has, therefore, evolved since the Commission
considered the United Kingdom’s surveillance scheme in its above-cited
decision in Christie v. the United Kingdom.
b. Application of the general principles to the present case
64. The Court recalls that section 3(2) of the 1985 Act allowed the
executive an extremely broad discretion in respect of the interception of
communications passing between the United Kingdom and an external
receiver, namely to intercept “such external communications as are
described in the warrant”. There was no limit to the type of external
communications which could be included in a section 3(2) warrant.
According to the applicants, warrants covered very broad classes of
communications, for example, “all commercial submarine cables having one
terminal in the UK and carrying external commercial communications to
Europe”, and all communications falling within the specified category
would be physically intercepted (see paragraph 43 above). In their
observations to the Court, the Government accepted that, in principle, any
person who sent or received any form of telecommunication outside the
British Islands during the period in question could have had such a
communication intercepted under a section 3(2) warrant (see paragraph 47
above). The legal discretion granted to the executive for the physical
capture of external communications was, therefore, virtually unfettered.
65. Moreover, the 1985 Act also conferred a wide discretion on the State
authorities as regards which communications, out of the total volume of
those physically captured, were listened to or read. At the time of issuing a
section 3(2) interception warrant, the Secretary of State was required to
issue a certificate containing a description of the intercepted material which
he considered should be examined. Again, according to the applicants,