The risk of state abuse of overbroad powers that infringe privacy
4.
Council of Europe states face serious security threats and the problem of
serious crime. But these threats are to be addressed whilst also protecting
fundamental rights. In his published Opinion in Tele2 Sverige AB v Postoch telestyrelsen (C‑203/15) and Secretary of State for the Home
Department v Tom Watson, Peter Brice, Geoffrey Lewis (C‑
698/15)
Interveners: Open Rights Group, Privacy International, The Law Society of
England and Wales Joined Cases C‑203/15 and C‑698/15 (Watson &
Others), Advocate General Saugmandsgaard Øe cited James Madison
writing in 1788 to explain the essential principles. Privacy is a qualified
right, but one which must be protected by the law to ensure that wide
state powers are not abused. The risk of abuse can occur in any state,
including those in the Council of Europe:
If men were angels, no government would be necessary. If angels
were to govern men, neither internal nor external controls on
government would be necessary. In framing a government which is
to be administered by men over men, the great difficulty lies in this:
you must first enable the government to control the governed; and
in the next place oblige it to control itself.
5.
As the Independent Reviewer of Terrorism Legislation, David Anderson
QC (the “Independent Reviewer”) put it in “A Question of Trust: Report of
the Investigatory Powers Review”:
The moral is not that threats ought to be ignored: on the contrary,
any credible threat should be guarded against. The point is, rather,
that claims of exceptional or unprecedented threat levels –
particularly if relied upon for the purposes of curbing well
established liberties – should be approached with scepticism. (§3.6)
6.
This application raises novel and important issues of law and principle: it
is the first time this Court has been called upon to address directly the
question of whether surveillance on the scale now taking place should be
7