BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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services to adopt a proactive approach, looking for hitherto unknown
dangers rather than investigating known ones. However, it also noted that
intercepting bulk data in transmission, or requirements that
telecommunications companies store and then provide telecommunications
content data or metadata to law-enforcement or security agencies involved
an interference with the privacy and other human rights of a large
proportion of the population of the world. In this regard, the Venice
Commission considered that the main interference with privacy occurred
when stored personal data was accessed and/or processed by the agencies.
For this reason, the computer analysis (usually with the help of selectors)
was one of the important stages for balancing personal integrity concerns
against other interests.
212. According to the report, the two most significant safeguards were
the authorisation process (of collection and access) and the oversight
process. It was clear from the Court’s case-law that the latter must be
performed by an independent, external body. While the Court had a
preference for judicial authorisation, it had not found this to be a necessary
requirement. Rather, the system had to be assessed as a whole, and where
independent controls were absent at the authorisation stage, particularly
strong safeguards had to exist at the oversight stage. In this regard, the
Venice Commission considered the example of the system in the United
States, where authorisation was given by the Foreign Intelligence
Surveillance Court. However, it noted that despite the existence of judicial
authorisation, the lack of independent oversight of the court’s conditions
was problematic.
213. Similarly, the Commission observed that notification of the subject
of surveillance was not an absolute requirement of Article 8 of the
Convention. In this regard, a general complaints procedure to an
independent oversight body could compensate for non-notification.
214. The report also considered internal controls to be a “primary
safeguard”. In this regard, recruitment and training were key issues; in
addition, it was important for the agencies to build in respect for privacy and
other human rights when promulgating internal rules.
215. The report also considered the position of journalists. It accepted
that they were a group which required special protection, since searching
their contacts could reveal their sources (and the risk of discovery could be
a powerful disincentive to whistle-blowers). Nevertheless, it considered
there to be no absolute prohibition on searching the contacts of journalists,
provided that there were very strong reasons for doing so. It acknowledged,
however, that the journalistic profession was not one which was easily
identified, since NGOs were also engaged in building public opinion and
even bloggers could claim to be entitled to equivalent protections.
216. Finally, the report briefly considered the issue of intelligence
sharing, and in particular the risk that States could thereby circumvent