PART 2: APPLICANTS’
OBSERVATIONS
REPLY
TO
UK
S8(4)
GOVERNMENT’S
I.
BULK
INTERCEPTION
CONVENTION
127.
The interception of communications and communications data is an
interference with privacy.
UNDER
THE
BREACHES
THE
As such, that interference must be “in
accordance with law” and “necessary in a democratic society”.
128.
These requirements exist because secret surveillance must be subject to a
clear and public legal regime, with adequate safeguards to protect liberty
and prevent arbitrary use. The Independent Reviewer explained the
importance of both safeguards and firm limits on the use of mass
surveillance technology. Not everything that is useful to a secret
intelligence service is permissible in a democratic society:
The capabilities of the state are subject to technical or cost-based
limits. But if the acceptable use of vast state powers is to be
guaranteed, it cannot simply be by reference to the probity of its
servants, the ingenuity of its enemies or current technical
limitations on what it can do. Firm limits must also be written into
law: not merely safeguards, but red lines that may not be crossed…
Some might find comfort in a world in which our every interaction
and movement could be recorded, viewed in real-time and
indefinitely retained for possible future use by the authorities.
Crime-fighting, security, safety or public health justifications are
never hard to find… The impact of such powers on the innocent
could be mitigated by the usual apparatus of safeguards, regulators
and Codes of Practice. But a country constructed on such a basis
would surely be intolerable to many of its inhabitants. A state that
enjoyed all those powers would be truly totalitarian, even if the
authorities had the best interests of its people at heart. There would
be practical risks: not least, maintaining the security of such vast
quantities of data. But the crucial objection is of principle”.80
80
A Question of Trust, paras 13.18-13.21.
51