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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
magnified when analysed on a large scale. Indeed, Stewart Baker, general
counsel of the NSA, had indicated that metadata could disclose everything
about someone’s life, and that if you had enough metadata, you wouldn’t
need content. As a result, different degrees of protection should not be
afforded to personal data based on the arbitrary and irrelevant distinction
between content and metadata, but rather on the inferences that could be
drawn from the data.
(viii) The Law Society of England and Wales
302. The Law Society expressed deep concern about the implications of
the section 8(4) regime for the principle of legal professional privilege. In
particular, the regime permitted the interception of legally privileged and
confidential communications between lawyers and clients, even when both
were in the United Kingdom. It also permitted the routine collection of
metadata attaching to such communications. Furthermore, once intercepted
these legally privileged communications could be used, provided that the
primary purpose and object of the warrant was the collection of external
communications. This arrangement – and the absence of adequate
constraints on the use of such material – was apt to have a potentially severe
chilling effect on the frankness and openness of lawyer-client
communications.
(c) The Court’s assessment
(i) General principles relating to secret measures of surveillance, including the
interception of communications
303. Although the Court has developed extensive jurisprudence on
secret measures of surveillance, its case-law concerns many different forms
of surveillance, including, but not limited to, the interception of
communications. It also concerns many different forms of “interference”
with applicants’ right to respect for their private lives; for example, while
some cases concern the interception of the content of communications,
others concern the interception or obtaining of communications data, or the
tracking of individuals via GPS. As the Court has at times differentiated
between the different types of surveillance and the different forms of
interference, there is no one set of general principles which apply in all
cases concerning secret measures of surveillance. The following principles
can, however, be extrapolated from the Court’s case-law.
304. Any interference with an individual’s Article 8 rights can only be
justified under Article 8 § 2 if it is in accordance with the law, pursues one
or more of the legitimate aims to which that paragraph refers and is
necessary in a democratic society in order to achieve any such aim (see
Roman Zakharov, cited above, § 227, and Kennedy, cited above, § 130).