BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
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microwave or satellite, the latter operating through a survey of the downlink
to Germany. Line-bound international communications were not subject to
monitoring except where the risk of a war of aggression was concerned.
10. It is noteworthy that at the time of the surveillance regime which
gave rise to the complaint in Weber and Saravia, strategic monitoring was
mainly carried out on telephone, telex and fax communications. In those
days, surveillance did not extend to email communications (see the
judgment of the Federal Constitutional Court of 14 July 1999, 1BvR
2226/94, 1 BvR 2420/95, 1 BvR 2437/95, Rn 230, according to which, at
the time of the hearing of the case in 1999, an expansion of strategic
monitoring to email communications was only being planned for the future).
One significant feature of communications by email, apart from the fact that
nowadays they are so common, is that the identity of both the sender and
recipient is usually directly available. Furthermore, many currently used
means of communication or access to information through the Internet were
only at embryonic stages at the time of the domestic complaint in Weber
and Saravia.
(ii) The context of the present case
11. My point with the remarks above is to draw attention to the factual
environment against the background of which those earlier cases were
adjudicated, and the dramatic changes that have occurred since. The
applicants have indeed referred to the technological “sea change” which has
taken place.
12. What is important to note in this regard is that the technological “sea
change” has had a twofold impact. On the one hand, technological
developments have advanced the means by which surveillance of
communications can be carried out. On the other hand, new technologies
have revolutionised the ways in which people communicate, access, use and
share information. That change is deeper than just a matter of volume. The
digital age has in some respects transformed people’s lifestyles.
13. As a result of these changes, the potential exposure nowadays of a
vast range of communications and other online activities to secret
surveillance is far greater than before. In the wake of such developments,
the potential risks of abuse arising from such surveillance have increased as
well. Thus, the factual context in which “exploratory” or “strategic” secret
surveillance operates is dramatically different from the circumstances that
still prevailed a couple of decades ago, when the Weber and Saravia
application was lodged, let alone four decades ago, when Klass and Others
was decided. In the light of such changes, it is problematic and troubling to
approach the question of the necessary safeguards against abuse simply by
applying standards that were considered sufficient under significantly or
even essentially different factual circumstances.