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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
legal basis for capturing the material. Otherwise, there could be a
circumvention of the protection provided by Article 8 of the Convention. In
other words, States should not be allowed to obtain material from foreign
authorities that they could not lawfully capture themselves.
(iv) Center for Democracy and Technology (“CDT”) and Pen American Center
(“PEN America”)
411. CDT and PEN America submitted that the interception regimes
operated by the NSA would satisfy neither the “in accordance with the law”
nor the “proportionality” requirements of Article 8 of the Convention, and
these deficiencies tainted the lawfulness of the United Kingdom’s
intelligence sharing regime.
(v) The International Commission of Jurists (“ICJ”)
412. The ICJ referred the Court to Articles 15 and 16 of the Articles of
State Responsibility of the International Law Commission (“the ILC
Articles”). They contended that, pursuant to Article 15, a Contracting State
could be responsible for mass surveillance conducted by a non-Contracting
State if they were acting in organised and structured forms of co-operation;
and that, pursuant to Article 16, a Contracting State could be responsible for
mass surveillance conducted by a non-Contracting State if it contributed to
the surveillance programme and had actual or constructive knowledge of the
breaches of international human rights obligations inherent in the system.
The ICJ further submitted that Contracting States participating in or
contributing to a mass surveillance programme were obliged to establish a
system of safeguards for the protection of Article 8 rights, and were also
under a duty to protect persons within their jurisdiction from violations of
Article 8 rights caused by mass surveillance programmes.
(vi) Open Society Justice Initiative (“OSJI”)
413. OSJI argued that States should not receive or request data from a
third party in a manner that circumvents individuals’ Article 8 rights. To
ensure that this does not happen, they must put in place safeguards at the
point when the material is first gathered, including prior scrutiny of the
human rights record and interception laws and practices in the foreign State,
and independent, preferably judicial, a posteriori oversight of any sharing
arrangements to ensure that the safeguards are in place and enforced.
(vii) The Law Society of England and Wales
414. The Law Society previously submitted that the RIPA regime and
associated Codes provided no robust or transparent safeguards for legally
privileged material. Since the same safeguards applied to privileged material
obtained by foreign States and disclosed to the intelligence services of the
United Kingdom, the same deficiencies also tainted that regime.