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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
2006, and subsequent technological developments meant that Governments
could now create detailed and intrusive profiles of intimate aspects of
private lives by analysing patterns of communications on a bulk basis. The
applicants therefore identified a number of additional requirements which
they believed were now necessary to ensure the Convention compliance of a
legal framework for surveillance: the requirement for objective evidence of
reasonable suspicion in relation to the persons for whom data was being
sought; prior independent judicial authorisation of interception warrants;
and the subsequent notification of the surveillance subject.
281. Finally, the applicants submitted that the section 8(4) regime was
disproportionate. In their view the intelligence services were systematically
collecting both content and communications data on a massive scale and
retaining it for future searching and use. Such a blanket approach fell foul of
the principles established in S. and Marper v. the United Kingdom [GC],
nos. 30562/04 and 30566/04, ECHR 2008 and M.K. v. France,
no. 19522/09, 18 April 2013.
(ii) The Government
282. At the outset, the Government submitted that the information and
intelligence obtained under the section 8(4) regime was critical to the
protection of the United Kingdom from national security threats; in
particular, but not exclusively, from the threat of terrorism. This was
especially so given the current level of sophistication of terrorists and
criminals in communicating over the Internet in ways that avoided
detection, whether through the use of encryption, the adoption of bespoke
communications systems, or simply because of the volume of Internet
traffic in which they could now hide their communications. Imposing
additional fetters on the interception of communications would damage the
State’s ability to safeguard national security and combat serious crime at
exactly the point when advances in communication technology had
increased the threat from terrorists and criminals using the Internet.
283. The seriousness of the terrorist threat was underscored by a number
of recent attacks across the United Kingdom and Europe, including the
attack on Westminster Bridge on 22 March 2017, the Manchester Arena
bombing of 22 May 2017, the attack on London Bridge on 3 June 2017, the
attacks in Barcelona and Cambrils on 17 August 2017, and the attack on the
London Underground on 15 September 2017. The Government therefore
submitted that under the Convention scheme, it was properly for States to
judge what was necessary to protect the general community from such
threats. While those systems were subject to the Court’s scrutiny, it had
consistently – and rightly – afforded States a broad margin of appreciation
in this field so as not to undermine the effectiveness of systems for
obtaining life-saving intelligence that could not be gathered any other way.