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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
14. Furthermore, the “sea change” in terms of technologies and
digitalised lifestyles is not the only development to be taken into
consideration. The threats on account of which surveillance of
communications is considered necessary have also changed. In this regard,
too, the picture is twofold. One the one hand, for instance, there have been
real and well-known aggravations in the risks of international terrorism. On
the other, there is also increasing evidence of how various threats can be
invoked, rightly or wrongly, in order to justify measures that entail
restrictions on individual rights and freedoms. The notion of terrorism, for
instance, may sometimes be used quite loosely and opportunistically in a
desire to legitimise interferences with such rights and freedoms. Especially
where secret surveillance is conducted in order to discover and explore
broadly formulated threats such as those to national security or the nation’s
economic well-being, the need for real safeguards through independent
control and review is obvious.
15. There is yet another “sea change” calling for heightened attention in
the assessment of the necessary standards in the context of secret
surveillance of communications. It is the degradation of respect for
democratic standards and the rule of law of which there is increasing
evidence in a number of States. While I am not suggesting that the present
respondent State is a case in point in this regard, the Convention standards
must nevertheless be considered in the light of the fact that such
developments testify to the actual or potential fragility of safeguards,
institutional arrangements and the underlying assumptions that in ideal
circumstances might appear adequate in order to minimise the risks of
abuse. In fact, the same threats that are invoked to justify secret surveillance
may also serve to reinforce tendencies toward a weakening of the checks
and balances which underpin adherence to the rule of law and democratic
governance.
(iii) Concerns
16. In line with the majority, I agree that the Contracting States must
enjoy a wide margin of appreciation in determining whether the protection
of national security requires the kind of surveillance of communications
which is at issue in the present case (paragraph 314 of the present
judgment). However, given the high risks of abuse, which at worst may
undermine not only individual rights and freedoms but democracy and the
rule of law more generally, the margin must be narrow when it comes to the
necessary safeguards against abuse.
17. Under the impugned legislation, one of the striking features is that
all of the supervisory powers entrusted to authorities with independence
from the executive are of an ex post nature. Another striking feature is that
not only are the general protective aims of the legislation very broadly
framed, but also the specific authorisations (warrants and certificates) issued