– in particular, its bulk interception programme code-named “Tempora” –
that the public first understood the true scope of the s8(4) Regime. The
confusing and obscure nature of RIPA and related surveillance legislation
in the UK has now been almost universally recognised, including by
multiple independent committees and reviewers tasked with assessing the
legislation following the Snowden disclosures.
12.
Second, the s8(4) Regime fails to meet the minimum safeguards for
communications surveillance identified in Weber and Saravia v Germany
(2008) 46 EHRR SE5. Furthermore, in its recent case law, the Court has
made clear that significant technological developments in electronic
communications and covert surveillance capabilities must be matched by
commensurate developments in the minimum legal safeguards applicable
to a state’s use of covert surveillance powers. As the Court declared in
Szabó, “[t]he guarantees required by the extant case-law on interceptions
need to be enhanced so as to address the issue of such surveillance
practices.” (§70).
13.
The Applicants also contend that the recent jurisprudence of this Court
and the Court of Justice of the European Union (“CJEU”) have identified
these enhanced safeguards – and the s8(4) Regime fails to satisfy any of
them. The s8(4) Regime does not require: (1) individual reasonable
suspicion regarding the target of the interception; (2) prior independent
authorisation of the interception; or (3) subsequent notification of the
interception measures.
14.
The Applicants place significance on the way UK law treats intercepted
communications data. While there are inadequate safeguards for both
content and communications data, in relation to the latter the lack of
safeguards is particularly serious. For this reason, the UK Government is
forced to argue that this difference in safeguards reflects a significant
difference in the infringement of privacy caused by state interception,
10