“‘metadata’ facilitate the almost instantaneous cataloguing of entire
populations, something which the content of communications does not”
(§§257-259).
132.
The EU Working Party on data protection and privacy has likewise
warned that “metadata often yield information more easily than the actual
content of our communications do.”81
133.
Courts in the United States have similarly recognised the highly intrusive
nature of the interception and examination of communications data. The
United States Court of Appeals for the Second Circuit, in considering the
NSA’s bulk interception of domestic telephone metadata programme
pursuant to §215 of the PATRIOT Act, noted “[t]hat telephone metadata do
not directly reveal the content of telephone calls, however, does not vitiate
the privacy concerns arising out of the government’s bulk collection of such
data”.82 Indeed, the Court observed that “[t]he more metadata the
government collects and analyses, furthermore, the greater the capacity for
such metadata to reveal ever more private and previously unascertainable
information about individuals.”83
134.
In the present proceedings, therefore, the IPT rightly concluded that,
when assessing compatibility with Article 8, the same legal principles
govern the interception and examination of communications data as apply
to the interception and examination of content.84
Article 29 Data Protection Working Party, Opinion 04/2014 on surveillance of electronic
communications for intelligence and national security purposes (10 April 2014), pp 4- 5. Reply
Annex No. 14.
82 ACLU v. Clapper, 785 F. 3d 787 (2d Cir., 2015). Reply Annex No. 18.
83 ACLU v. Clapper.
84 First Judgment, para 114.
81
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