that these capabilities are essential to the protection of the national security of
the United Kingdom.
The disputed impact of Watson
18.
It is in this context that we turn to consider the issue before us as to the impact
of the Grand Chamber’s decision in Watson upon the conclusions we have
reached as to the proper balance, by reference to the ECHR, between privacy
of the individual and protection of the public, against the background of the
ever-increasing threats to national security, summarised in the evidence before
us and in any event well known.
19.
The s.94 regime is unlike the provisions of the Data Retention and
Investigatory Powers Act 2014 (“DRIPA”), which was the Act considered in
Watson, whereby a public telecommunications operator, or provider, could be
required by the Secretary of State, by a retention notice, to retain commercial
data longer than their commercial needs required, so as to be available to the
SIAs as and when called upon. S.94 requires communications data to be
delivered up to the SIAs, so as to constitute BCD in their custody. Access is
then either for a targeted purpose or, more likely, there is an electronic
trawling of masses of data, which are not themselves read, in order to
discover, as referred to above, the needle in the haystack.
A miniscule
quantity of the data trawled is ever examined. There is thus no genuine
intrusion to any save that miniscule proportion.
20.
The Claimant submits that, in the light of Watson, the acquisition (and access
to and use of) BCD is unlawful at EU law. The Respondents however submit
that no such conclusion can be reached, in that:
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