BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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afforded to them in operating an interception regime must necessarily be
narrower. In this regard, the Court has identified six minimum requirements
that both bulk interception and other interception regimes must satisfy in
order to be sufficiently foreseeable to minimise the risk of abuses of power
(see paragraph 307 above).
316. The applicants argue that in the present case the Court should
“update” those requirements by including requirements for objective
evidence of reasonable suspicion in relation to the persons for whom data is
being sought, prior independent judicial authorisation of interception
warrants, and the subsequent notification of the surveillance subject (see
paragraph 280 above). In their view, such changes would reflect the fact that
due to recent technological developments the interception of
communications now has greater potential than ever before to paint an
intimate and detailed portrait of a person’s private life and behaviour.
However, while the Court does not doubt the impact of modern technology
on the intrusiveness of interception, and has indeed emphasised this point in
its case-law, it would be wrong automatically to assume that bulk
interception constitutes a greater intrusion into the private life of an
individual than targeted interception, which by its very nature is more likely
to result in the acquisition and examination of a large volume of his or her
communications. In any event, although the Court would agree that the
additional requirements proposed by the applicants might constitute
important safeguards in some cases, for the reasons set out below it does not
consider it appropriate to add them to the list of minimum requirements in
the case at hand.
317. First of all, requiring objective evidence of reasonable suspicion in
relation to the persons for whom data is being sought and the subsequent
notification of the surveillance subject would be inconsistent with the
Court’s acknowledgment that the operation of a bulk interception regime in
principle falls within a State’s margin of appreciation. Bulk interception is
by definition untargeted, and to require “reasonable suspicion” would render
the operation of such a scheme impossible. Similarly, the requirement of
“subsequent notification” assumes the existence of clearly defined
surveillance targets, which is simply not the case in a bulk interception
regime.
318. Judicial authorisation, by contrast, is not inherently incompatible
with the effective functioning of bulk interception. Nevertheless, as the
Venice Commission acknowledged in their report on the Democratic
Oversight of Signals Intelligence Agencies (see paragraph 212 above),
while the Court has recognised that judicial authorisation is an “important
safeguard against arbitrariness” (see Roman Zakharov, cited above, § 249),
to date it has not considered it to be a “necessary requirement” or the
exclusion of judicial control to be outside “the limits of what may be
deemed necessary in a democratic society” (see, for example,