CHAPTER 12: CIVIL SOCIETY
represents therefore a “qualitative change” in surveillance,37 with which the
legal regime is ill-equipped to deal.
(b)
Further, the lawfulness of bulk collection under the ECHR and EU law does not,
it is argued, follow from the judgment in Kennedy v UK, which focused on the
“targeted” 8(1) regime. The IPT has broadly upheld the legality of the s8(4)
regime and bulk collection in the Liberty IPT Case (judgment of 5 December
2014), but many of those who made submissions to me are of the view that this
will not prove the final word on the matter. It appears that the ECtHR will be
called on to determine the issue in the application by Big Brother Watch and in
the Liberty ECtHR Application. It was suggested to me, in advance of the IPT’s
judgment or with an eye to proceedings in Strasbourg, that:
bulk collection is not “in accordance with the law”, in particular because
powers for bulk collection are not apparent from the face of the statute;38
it is not proportionate, and indeed that it is simply impossible to have a
meaningful assessment of proportionality at that level;39 and that
it does not provide adequately for certain material, such as material covered
by LPP and material relating to journalists, which are considered below.
(c)
The idea that collection is of itself an intrusion into privacy which requires
careful justification (and, in law, a proportionality analysis) was consistently
highlighted. Indeed, it was emphasised that whether or not a communication
is read, the fact that it is collected is of itself an intrusion.40 It was also stated
that even if a person does not read or process the data, if there is technological
processing of that data this is a further intrusion to mere collection.41
(d)
There are concerns regarding the risk posed by holding so much data: it could
be abused or accessed (unauthorised) by people outside the system.
(e)
Fundamentally, there is a concern that such collection grants far more power
to those conducting surveillance than is warranted, which undermines the basic
balance between the citizen and the state. This has been done without public
debate and proper scrutiny.
12.36. Some expressed the view that the alleged actions detailed in the Snowden
Documents would, if true, be either unlawful or improper and should be prohibited
(expressly, if necessary). Insofar as such actions are authorised by the current
37
38
39
40
41
See the submission of Dr. Paul Bernal.
As set out by the Equalities and Human Rights Commission.
See Global Network Initiative’s submission
As set out in the submissions of Dr Paul Bernal and Professor Peter Sommer. This view is supported
by the recent SURVEILLE Report, pp. 12-13.
As set out in submissions from Open Rights Group and the Bingham Centre for the Rule of Law. An
example given of this point by Open Rights Group is the scanning of a person in a body scanner, rather
than a personal examination by passport. One is technological, rather than human, but remains an
intrusion into privacy.
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