186.
The absence of any requirement for identification or of reasonable
suspicion is incompatible with the requirements established in the Court’s
recent case law. In particular:
(1)
In Zakharov, the Grand Chamber emphasised that the authority
responsible for authorising interception “must be capable of
verifying the existence of a reasonable suspicion against the person
concerned, in particular, whether there are factual indications for
suspecting that person of planning, committing or having committed
criminal acts or other acts that may give rise to secret surveillance
measures, such as, for example acts endangering national security”
(§260). The Grand Chamber stated that, “Russian courts do not
verify whether there is a ‘reasonable suspicion’ against the person
concerned” (§263).
(2)
Similarly, in Szabó, albeit in reference to the necessity and
proportionality evaluation, the Court noted the requirement of “a
sufficient factual basis for the application of secret intelligence
gathering measures…on the basis of an individual suspicion
regarding the target person” as critical for “the authorising authority
to perform an appropriate proportionality test.” (§71).
187.
If the hypothetical possibility of discovering a previously unknown threat
is a sufficient basis to justify the existence of bulk intrusion, then that
rationale effectively obviates any possibility of a meaningful case-by-case
assessment of proportionality. The possibility of discovering a threat
would
automatically
assume
primacy
over
any
other
interests.
Accordingly, a necessary safeguard for any interception regime must be
the articulation of a reasonable suspicion against an individual in order to
allow proportionality to be assessed.
73