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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
“reasonable suspicion” would largely preclude the operation of bulk
interception regimes, despite the fact that the Court had permitted such
monitoring in Weber. Furthermore, in Kennedy (cited above, § 167) the
Court clearly held that judicial authorisation could be either ex ante or post
facto. In that case the Court had found that the oversight provided by the
Commissioner, the ISC and the IPT had compensated for any lack of prior
judicial authorisation. Finally, any requirement to notify a suspect of the use
of bulk data tools against him could fundamentally undermine the work of
the intelligence services and potentially threaten the lives of covert human
intelligence sources close to the suspect. It would also be wholly impractical
in the section 8(4) context, since many of the targets would be overseas and
their personal details might be unknown or imperfectly known.
(b) The submissions of the third parties
(i) Article 19
295. Article 19 submitted that mass interception powers were by their
very nature inherently incapable of being exercised in a proportionate
manner and, as such, were inherently incompatible with the requirements of
the Convention. Article 19 therefore urged the Court to conclude that only
targeted surveillance based on reasonable suspicion and authorised by a
judge constituted a legitimate restriction on the right to privacy.
(ii) Access Now
296. Access Now submitted that the mass surveillance at issue in the
present case failed to comply with the International Covenant on Civil and
Political Rights (“ICCPR”) and the International Principles on the
Application of Human Rights to Communications Surveillance since the
United Kingdom had not demonstrated that such surveillance was strictly
necessary or proportionate. They further contended that surveillance
programmes should not be considered independently but should instead be
viewed in relation to the entirety of a nation’s surveillance activities as
machine learning, through which mathematical algorithms could draw
inferences from collections of data, had increased the invasiveness of big
data sets and data mining.
(iii) ENNHRI
297. The ENNHRI also drew the Court’s attention to international
instruments such as the ICCPR, the American Convention on Human
Rights, and the EU Charter of Fundamental Rights. It observed that in 2015
the Human Rights Committee reviewed the State Party report of the United
Kingdom of Great Britain and Northern Ireland. It expressed concern that
RIPA provided for untargeted warrants for the interception of external
communications without affording the same safeguards as applied to