B.
Foreseeability and accessibility
135.
In Zakharov the Court “note[d] from its well established case-law that the
wording ‘in accordance with law’ requires the impugned measure both to
have some basis in domestic law and to be compatible with the rule of law”.
It elaborated that “[t]he law must thus meet quality requirements; it must
be accessible to the person concerned and foreseeable as to its effects”
(§228).
136.
In addition, the Court in Zakharov emphasised that “the reference to
‘foreseeability’ in the context of interception of communications cannot be
the same as in many other fields.” Given that “where a power vested in the
executive is exercised in secret, the risks of arbitrariness are evident”, the
Court stated that it is “therefore essential to have clear, detailed rules”
regulating interception “especially as the technology available for its use is
becoming increasingly more sophisticated.” Thus, “[t]he domestic law must
be sufficiently clear to give citizens an adequate indication as to the
circumstances in which and the conditions on which public authorities are
empowered to resort to any such measures” (§229).
137.
The Applicants submit, at the outset, that the requirements of
foreseeability and accessibility are not met where RIPA – the principal
legislation governing the bulk interception regime – has been variously
described by:
(1) the ISC as “unnecessarily complicated”, “difficult to understand”,
and “unnecessarily secretive”;
(2) the Independent Reviewer, as “complex, fragmented and opaque”,
and “extraordinarily difficult to understand and apply”; and
(3) by RUSI as “unclear” and failing to “serve either the government or
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