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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(γ) Conclusions
387. In light of the foregoing considerations, the Court considers that the
decision to operate a bulk interception regime was one which fell within the
wide margin of appreciation afforded to the Contracting State. Furthermore,
in view of the independent oversight provided by the Interception of
Communications Commissioner and the IPT, and the extensive independent
investigations which followed the Edward Snowden revelations, it is
satisfied that the intelligence services of the United Kingdom take their
Convention obligations seriously and are not abusing their powers under
section 8(4) of RIPA. Nevertheless, an examination of those powers has
identified two principal areas of concern; first, the lack of oversight of the
entire selection process, including the selection of bearers for interception,
the selectors and search criteria for filtering intercepted communications,
and the selection of material for examination by an analyst; and secondly,
the absence of any real safeguards applicable to the selection of related
communications data for examination.
388. In view of these shortcomings and to the extent just outlined, the
Court finds that the section 8(4) regime does not meet the “quality of law”
requirement and is incapable of keeping the “interference” to what is
“necessary in a democratic society”. There has accordingly been a violation
of Article 8 of the Convention.
B. The intelligence sharing regime
389. The applicants in the third of the joined cases complain that the
respondent State’s receipt of material intercepted by the NSA under PRISM
and Upstream was in breach of their rights under Article 8 of the
Convention. The applicants in the first of the joined cases complain more
generally about the receipt of information from foreign intelligence services.
1. Admissibility
(a) The parties’ submissions
390. The Government argued that the applicants could not claim to be
victims of the alleged violation within the meaning of Article 34 of the
Convention since they could not possibly have been affected by the
intelligence sharing regime. They did not contend, and had put forward no
evidential basis for contending, that their communications had in fact been
intercepted under PRISM/Upstream and subsequently shared with the
United Kingdom intelligence services. Rather, they asserted only that their
communications “might have been” subject to foreign interception
conveyed to United Kingdom authorities, or that they “believed” that to be
the case. As such, their complaint was an abstract one about the regime