retention and examination of the content and state interception,
examination and retention of the communications data associated with
such communications. That distinction is now largely discredited. It is well
accepted – both through expert evidence and in the CJEU’s decisions –
that interference with communications data, including its examination
and retention, is a significant interference with privacy. The Government’s
position in this case in seeking to defend the lack of legal safeguards
connected with communications data by elevating a distinction between
content and communications data is simply untenable.
15.
For all of these reasons, interferences with privacy and freedom of
expression authorised under the s8(4) Regime are not in accordance with
law.
16.
Bulk interception is also neither necessary nor proportionate.
The
Government maintains that, “the information and intelligence obtained
under both the Intelligence Sharing Regime and the s8(4) Regime have
been and remain critical to the proper protection of national security,
notably against the serious threat of terrorism” (Observations, §2). The
Applicants agree that the UK faces serious security risks and that
properly targeted and authorised surveillance measures can assist in the
prevention and prosecution of serious crimes. The Applicants further
recall the Government’s similar claim in S and Marper v United Kingdom
(2009) 48 EHRR 50 that DNA material taken from persons who had not
been convicted of any criminal offence was “of inestimable value in the
fight against crime and terrorism and the detection of the guilty” (§91). In
that case, the Grand Chamber unanimously concluded that the “blanket
and indiscriminate” nature of the Government’s retention of personal data
“fail[ed] to strike a fair balance between the competing public and private
interests and that the respondent State has overstepped any acceptable
margin of appreciation in this regard” (§25).
11