BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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internal communications, and it made a number of detailed
recommendations, including the creation of sufficiently precise and
foreseeable legal provisions, and judicial involvement in the authorisation of
such measures.
(iv) The Helsinki Foundation for Human Rights (“HFHR”)
298. The HFHR described their experience challenging the surveillance
of communications by public authorities in Poland, which culminated in the
Constitutional Tribunal finding certain aspects of the relevant legislation to
be unconstitutional. The legislation was subsequently amended.
(v) The International Commission of Jurists (“ICJ”)
299. The ICJ submitted that in light of the scale and scope of the
interference with privacy entailed in mass surveillance, the distinction
between the acquisition of metadata and content had become out-dated.
Furthermore, the fact that, in a mass surveillance operation, elements of the
interference with rights might take place outside a State’s territorial
jurisdiction didn’t preclude that State’s responsibility, since its control over
the information was sufficient to establish jurisdiction.
(vi) Open Society Justice Initiative (“OSJI”)
300. OSJI submitted that both the amount of data available for
interception today and governments’ appetite for data far exceeded what
was possible in the past. Consequently, bulk interception was a particularly
serious interference with privacy which could, through its “chilling effect”,
potentially interfere with other rights such as freedom of expression and
freedom of association. To be lawful, bulk interception should therefore
satisfy several preconditions: the governing law had to be sufficiently
precise; the scope of the information gathered had to be limited by time and
geography; and information should only be gathered based on “reasonable
suspicion”.
(vii) European Digital Rights (“EDRi”) and other organisations active in the
field of human rights in the information society
301. EDRi and others argued that the present case offered the Court a
crucial opportunity to revise its framework for the protection of metadata.
Governments had built their surveillance programmes based on the
distinction drawn between content and metadata in Malone v. the United
Kingdom, 2 August 1984, Series A no. 82, but at the time that case was
decided neither the Internet nor mobile phones existed. Today, metadata
could paint a detailed and intimate picture of a person: it allowed for
mapping of social networks, location tracking, Internet browsing tracking,
mapping of communication patterns, and insight into who a person
interacted with. Moreover, the level of detail that could be gleaned was