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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(ii) The Government
458. The Government pointed out that as the Chapter II regime was a
targeted regime, there was nothing “unintentional” about its operation. On
the contrary, the acquisition of communications data under it would always
be intentional. It was therefore to be distinguished from regimes for the bulk
interception or bulk acquisition of data.
459. The Government further argued that the amended Acquisition and
Disclosure of Communications Data Code of Practice (“the ACD Code”)
provided adequate safeguards in respect of the retention of communications
data acquired under the Chapter II regime, and that the Interception of
Communications Commissioner provided an important degree of oversight
of the operation of the regime.
(b) The Court’s assessment
(i) Existing case-law on the acquisition of communications data
460. To date, the Court has only twice been called on to consider the
Convention compliance of a regime for the acquisition by a public authority
of communications data from a CSP: in Malone and, more recently, in
Ben Faiza (both cited above). In Malone, the authorities had obtained the
numbers dialled on a particular telephone and the time and duration of the
calls from the Post Office, which, as the supplier of the telephone service,
had acquired this data legitimately by a process known as “metering”. While
the Court accepted that the use of the data could give rise to an issue under
Article 8 of the Convention, it considered that “by its nature” it had to be
distinguished from the interception of communications, which was
“undesirable and illegitimate in a democratic society unless justified” (see
Malone, cited above, § 84). However, it was not necessary for the Court to
consider this issue in any further detail, since, in the absence of any legal
framework governing the acquisition of records from the Post Office, the
Court found that the interference had no basis in domestic law (see Malone,
cited above, § 87).
461. While Malone is now thirty-four years old, the Ben Faiza judgment
was delivered in February 2018. In that case the Court was considering an
order issued to a mobile telephone operator to provide lists of incoming and
outgoing calls on four mobile telephones, together with the list of cell
towers “pinged” by those telephones. Pursuant to the domestic law in
question (Article 77-1-1 of the Criminal Procedure Code), prosecutors or
investigators could, on the authorisation of the former, require
establishments, organisations, persons, institutions and administrations to
provide them with documents in their possession which were required for
the purposes of the investigation. The Court accepted that the measure was
“in accordance with the law”, and that the law provided adequate safeguards
against arbitrariness. In respect of those safeguards, the Court observed that