152.
In any event, the Applicants submit that the reasoning of the Third
Section in Weber – while sufficient to address the question of admissibility
in that case – is too slender a basis upon which to draw conclusions in the
present case. Indeed, this Court has moved on from Weber in its
jurisprudence.
153.
In its recent case law, the Court has made it clear that significant
developments in electronic communications and covert surveillance
capabilities must be matched by commensurate developments in the
minimum legal safeguards applicable to the use of covert surveillance
powers. In Szabó the Court noted that “the mere existence” of legislation
authorising the monitoring of electronic communications “involve[s], for all
those to whom the legislation could be applied, a menace of surveillance”
(§53). At the same time, the Court highlighted that “[g]iven the
technological advances since the Klass case, the potential interferences with
email, mobile phone and Internet services as well as those of mass
surveillance attract the Convention protection of private life even more
acutely” (§53, citing Klass, §41). In particular, the Court noted the
“remarkable progress” in the scale and sophistication of surveillance
technology and techniques in recent years, which have “reached a level of
sophistication which is hardly conceivable for the average citizen,
especially when automated and systemic data collection is technically
possible and becomes widespread” (§68).
154.
The Court explained that it was necessary, in light of these technological
developments, to ensure “the simultaneous development of legal safeguards
securing respect for citizens’ Convention rights” (§68). Otherwise, the Court
concluded, “it would defy the purpose of government efforts to keep
terrorism at bay…if the terrorist threat were paradoxically substituted for
by a perceived threat of unfettered executive power intruding into citizens’
private spheres by virtue of uncontrolled yet far-reaching surveillance
techniques and prerogatives.” (§68).
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