C.
The framework for analysing the Applicants’ claims
148.
The Government relies on RIPA’s confusing framework to assert that its
bulk interception regime is in accordance with law.92 A decade ago, in
Weber and Saravia v Germany (2008) 46 EHRR SE5 (decided in 2006) this
Court, when considering admissibility, identified the minimum safeguards
for communications surveillance that must be satisfied to protect against
arbitrary interference and abuse. The s8(4) Regime does not satisfy the
requirements of Weber, as is explained in more detail below. The
Applicants also contend that the Weber safeguards are no longer sufficient
to address modern forms of communications surveillance in any event.
When Weber was decided, smartphones did not exist. Facebook was a
website for university students, Twitter had not been invented and Gmail
was not available in Europe. The public understanding of the intrusive
power of the storage and analysis of large quantities of private data was in
its infancy.
149.
The Government maintains that there is “no essential difference of kind”
between the s8(4) Regime and the “strategic monitoring” addressed in
Weber (Observations, para 4). Rather, it insists that what has changed is
“the sophistication of terrorists and criminals in communicating over the
internet in ways that avoid detection” (para 5).
150.
The Government is wrong. The “strategic monitoring” in Weber involved
interception of international wireless telephone communications, which
The Government also relies on this Court’s judgment in Liberty, which considered whether the
statutory regime for conducting interception in relation to “external communications” was in
accordance with law. The Applicants note, however, that, the Government relied in Liberty on the
statutory framework existing at that time, the Interception of Communications Act 1985
(“IOCA”), which preceded RIPA. The Government raised a number of arguments similar to those
raised in the present case. First, it asserted that the relevant statutory provisions could not
provide greater clarity without an unacceptable risk to national security. Second, it submitted
that there were adequate safeguards contained in s6 of IOCA (which are similar to those
contained in ss 15 and 16 of RIPA). Finally, it argued that IOCA was complemented by a range of
oversight mechanisms, including the IOCC and the jurisdiction of a specialist Tribunal. The
Court rejected these arguments and ultimately found that the IOCA regime for intercepting
external communications was not in accordance with law under Article 8.
92
58