BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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was found to suggest that the intelligence services had – or had attempted –
to use the intelligence sharing regime to circumvent RIPA.
(b) The submissions of the third parties
(i) The Electronic Privacy Information Center (“EPIC”)
407. EPIC submitted that the evolving technologies of the NSA and
other intelligence agencies had created an almost unlimited ability to access,
store and use personal information and private communications globally.
However, no US law or regulation prohibited the NSA from conducting
warrantless surveillance on foreign citizens abroad. Furthermore, in recent
years the US had failed to adopt any meaningful reforms which would have
provided adequate privacy and data protection safeguards for non-US
persons.
(ii) Access Now
408. Access Now contended that while Mutual Legal Assistance
Treaties (“MLATs”) offered a transparent and formal process for one State
party to request intelligence for another, the operation of secret signals
intelligence programmes (for example, the Five Eyes intelligence sharing
network of which the United Kingdom, the US, Australia, Canada and New
Zealand were members) were not transparent and were prohibited by
international human rights standards. Such secret programmes were not
necessary, since the relevant intelligence could be obtained under MLATs.
(iii) Bureau Brandeis
409. The members of the Bureau Brandeis coalition were plaintiffs in a
case against the Netherlands. The Dutch authorities had accepted that data
was exchanged with foreign intelligence partners (including the US) and
that it could not be excluded that they had received information acquired by
foreign services using methods that might infringe human rights. The
coalition brought proceedings in which they argued that the NSA’s mass
data collection programs violated human rights guaranteed by the
Convention. However, the Hague District Court said that under Dutch law,
Dutch intelligence services were allowed to collaborate with the NSA, and
the NSA was in turn bound by US law which, in general, did not conflict
with the Convention’s privacy requirements. The court further held that
because the raw data was shared in bulk, less stringent safeguards were
necessary than would apply when the data was examined and used, as there
was a difference between receiving data and using it for individual cases.
An appeal against this decision was dismissed in March 2017.
410. In their third party intervention before this Court, the coalition
argued that the sharing of intelligence should only be permitted if it was
accompanied by sufficient safeguards and the foreign authority had a sound