155.
The Court further noted that one of the reasons why it found no violation
of Article 8 in Kennedy was because “the impugned legislation did not
allow for ‘indiscriminate capturing of vast amounts of communications’”
(§69). While the Government submits that the judgment in Kennedy is “a
strong indicator that the same outcome should follow” for the s 8(4) Regime
(Observations, §4.16), Kennedy
concerned the
interception of the
communications of a specific individual or premises under s 8(1) of RIPA.
As the ISC has explained: “An 8(4) warrant for bulk interception is quite
different from the 8(1) warrants used for targeted interception. Whereas the
8(1) warrant system provides authorisation for deliberate and specific
investigation into a named individual, usually in the UK, the 8(4) warrant
system is designed for much broader intelligence-gathering purposes”.94
The s8(4) Regime, is therefore different in terms of the nature and scale of
interception.95
156.
In Szabó, the Court stated that it was “a matter of serious concern” where
“broad-based” legislation could potentially enable “so-called strategic,
large-scale interception” (§69). The Court added, in this respect, that “the
possibility occurring on the side of Governments to acquire a detailed
profile of the most intimate aspects of citizens’ lives may result in
particularly invasive interferences with private life” and made specific
reference to “views expressed by the Court of Justice of the European Union
and the European Parliament” (§70). The Court stressed accordingly that
“[t]he guarantees required by the extant Convention case-law on
interceptions need to be enhanced so as to address the issue of such
surveillance practices.” (§70).
ISC Report, para 95.
Further, in Kennedy, the Court relied on the Government’s assertion that the IPT is an
effective remedy to demonstrate compliance with the “in accordance with law” requirement. But
this case and subsequent disclosures have shown that the IPT is not an effective remedy (see
paras 96-100, 280-285).
94
95
61