BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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State does not, in and of itself, give rise to a breach of Article 8 of the
Convention.
382. Finally, the Court recalls that in light of the Edward Snowden
revelations, there were three thorough independent reviews of the existing
interception regimes, and none of the reviewing bodies found any evidence
that deliberate abuse of interception powers was taking place (see
paragraphs 148-172 above).
383. In light of the above considerations, the Court is of the opinion that
the supervision and oversight of the bulk interceptions capable of providing
adequate and effective guarantees against abuse.
- Proportionality
384. With regard to the proportionality of the bulk interception regime,
the Court notes that the Independent Reviewer of Terrorism Legislation,
examined a great deal of closed material and concluded that bulk
interception was an essential capability: first, because terrorists, criminals
and hostile foreign intelligence services had become increasingly
sophisticated at evading detection by traditional means; and secondly,
because the nature of the global Internet meant that the route a particular
communication would travel had become hugely unpredictable. Although
he and his team (including a person with the necessary technical
background to understand the systems and techniques used by GCHQ, and
the uses to which they could be put, an investigator with experience as a
user of secret intelligence, including intelligence generated by GCHQ, and
senior independent counsel with the skills and experience to challenge
forensically the evidence and the case studies presented by the security and
intelligence services) looked at alternatives to bulk interception (including
targeted interception, the use of human sources and commercial cyberdefence products), they concluded that no alternative or combination of
alternatives would be sufficient to substitute for the bulk interception power
(see paragraph 176 above).
385. Similarly, while acknowledging the risks that bulk interception can
pose for individual rights, the Venice Commission nevertheless recognised
its intrinsic value for security operations, since it enabled the security
services to adopt a proactive approach, looking for hitherto unknown
dangers rather than investigating known ones (see paragraph 211 above).
386. The Court sees no reason to disagree with the thorough
examinations carried out by these bodies and the conclusions subsequently
reached. It is clear that bulk interception is a valuable means to achieve the
legitimate aims pursued, particularly given the current threat level from both
global terrorism and serious crime.