CHAPTER 5: LEGAL CONSTRAINTS
5.29.
It seems therefore that the authorisation, storage and use of communications data
and of intercepted material must each meet the Weber v Germany standard. That is
consistent with the detailed picture of an individual’s life that can be obtained from
communications data, particularly when different sources are combined.38
5.30.
Where the same kind of material is gathered via different means, distinctions may be
particularly hard to draw. In Bykov v Russia, the Grand Chamber of the ECtHR held
that the bugging of a live conversation in a sting operation attracted the same
protections as interception of communications.39
Bulk collection
5.31.
Bulk collection of both communications data and intercepted material has been one
of the leading sources of controversy following the disclosure of the Snowden
Documents. Bulk collection is potentially problematic, from an ECHR perspective,
because of the sheer number of individuals whose private lives are interfered with.
As a result, and leaving aside the question of whether it is in accordance with the law,
it may be more difficult to demonstrate that the interference is “necessary in a
democratic society”, or proportionate.
5.32.
Most applicants to the ECtHR focus on the individual alleged violations of their right
to privacy.40 The court has only considered bulk collection on a small number of
occasions. The leading authority in this area is Weber v Germany, in which the
applicants complained that the German state was monitoring communications in the
absence of any “concrete suspicion” and relying on “catchwords” in order to analyse
the data. The ECtHR dismissed the application as manifestly ill-founded, noting (at
paras 114-117) that “strategic monitoring” was not in itself a disproportionate
interference with the right to privacy. In so concluding it had regard to the narrow and
closely defined justifications for such collection, the safeguards that governed the
authorisation of the collection, the safeguards concerning use of that material and the
data protection systems in place.
5.33.
In the other leading case concerning bulk collection of intercepted material, Liberty v
UK, the court concluded that the UK legislation in question (the Interception of
Communications Act 1985 [IOCA 1985]) was not in accordance with the law. IOCA
1985 did not provide sufficient safeguards against abuse of the power to intercept or
use the material in question.41 Because the case was decided on the “in accordance
with the law” basis, the court did not explicitly consider whether the interference in
question was proportionate. On the other hand, as set out above, the court frequently
38
39
40
41
As the CJEU recently explained in Digital Rights Ireland, para 26: “Those data, taken as a whole, may
allow very precise conclusions to be drawn concerning the private lives of the persons whose data has
been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or
other movements, the activities carried out, the social relationships of those persons and the social
environments frequented by them.”
Application no. 4378/02, judgment of 10 March 2009, paras 78-79.
See for example the judgment in Kennedy v UK, which considered the lawfulness of the s8(1) framework
for individualised warrants but not the more general powers under s8(4).
Liberty v UK, para 69.
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