CHAPTER 14: EXPLANATIONS
assessments of a study conducted under EU auspices, which has since gone
on to conclude that “[E]lectronic mass surveillance fails, and fails drastically. It
produces at best medium-level usability scores which are overshadowed by a
very high degree of ethical risk, coupled with levels of fundamental rights
intrusion that on their own would make the surveillance legally impermissible
under the EU Charter of Fundamental Rights and human rights treaties.”42
(b)
The European Commission for Democracy through Law (Venice Commission)
reported in April 2015 in considerably more moderate (and on the basis of what
I have seen, realistic) terms.43
It accepted the utility of what it called “strategic surveillance”, remarking
on its importance for target development and locating it as “one part of an
overarching trend towards more proactive surveillance of the
population”.44
Having remarked that signals intelligence has historically been subject to
relatively weak safeguards, partly because it grew out of military
intelligence aimed at foreign communications,45 it devoted most of its
attention to the need for proper safeguards, regulation and oversight.
It concluded that “it is necessary to regulate the main elements in statute
form and to provide for strong mechanisms of oversight”, observing that
“[t]he national legislature must be given a proper opportunity to
understand the area and draw the necessary balances”.
14.45. Whether or not the s8(4) regime is proportionate for the purposes of ECHR Article 8
is an issue awaiting determination by the ECtHR. It is not my function to offer a legal
assessment, particularly in a case that is under consideration by a senior court. But
on the basis of what I have learned, there is no cause for me either to disagree with
the factual conclusions expressed in recent months by the IOCC, the IPT or the ISC,
or to recommend that bulk collection in its current form should cease. Indeed its utility,
particularly in fighting terrorism in the years since the London bombings of 2005, has
been made clear to me through the presentation of case studies and
contemporaneous documents on which I have had the opportunity to interrogate
analysts and other GCHQ staff. With such wide-ranging powers, it is however
absolutely necessary that the right procedures and safeguards should be in place: I
address this topic, with some suggestions for improvement, at Recommendations 4049 and 72-80 below.
42
43
44
45
detailed examples I have been shown at GCHQ, six of which are reproduced in summary form at
Annex 9 to this Report. One might wonder why, if it is not effective, it is practised at all.
SURVEILLE Deliverable D4.10, April 2015. Aspects of the SURVEILLE methodology seem debatable:
some of the inputs are subjective in nature, and the potential of safeguards, regulation and oversight
to reduce ethical risk seems not to have been taken into account.
European Commission for Democracy through Law, “Update of the 2007 Report on the democratic
oversight of the Security Services and Report on the Democratic Oversight of Signals Intelligence
Agencies”, April 2015, CDL-AD(2015)006.
Ibid., paras 51, 61, citing legal requirements on companies to retain and make available airline
passenger name records, metadata and financial transactions data.
Ibid., para 54.
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