Introduction
On May 25, 2021, the Grand Chamber of the European Court of Human Rights (ECtHR) issued a final judgment in Big Brother Watch and Others v. United Kingdom (BBW).Footnote 1 The decision is the first Grand Chamber ruling on bulk interception in the post-Snowden era and charts the path forward for the use of tools and techniques of mass surveillance for national security purposes by Council of Europe member states. The decision was issued alongside a parallel ruling in Centrum för rättvisa v. Sweden (CFR).Footnote 2 While CFR is “very much the companion case to BBW,”Footnote 3 an analysis of it is outside the scope of this note. Suffice to say that, combined, both cases reaffirm the Court's position that the operation of foreign bulk interception regimes does not ipso facto violate the Convention, as such operations may be necessary in the investigation of national security threats and serious crime, including in the context of global terrorism, cyber-attacks, counter-espionage, election interferences, drug trafficking, and child pornography.Footnote 4 In a rather complex and lengthy judgment, the Court elaborated on a procedural framework that incorporates “end-to-end safeguards” and is aimed at preventing power from being abused in the operation of these tools.Footnote 5
Background
The case was first brought by a group of human rights NGOs and journalists seeking to invalidate the now mostly inoperative Regulation of Investigatory Powers Act 2000 (RIPA). The complaints alleged violations of the rights to privacy and freedom of expression under Articles 8 and 10 of the European Convention on Human Rights by the Government Communications Headquarters (GCHQ), the United Kingdom's primary signals intelligence (SIGINT) agency. The case relied heavily on evidence leaked by former CIA subcontractor Edward Snowden and concerned three SIGINT collection practices: (1) bulk and automated interception of cross-border communications under the TEMPORA program;Footnote 6 (2) receipt by the United Kingdom of intelligence collected by the U.S. National Security Agency (NSA) under the mass surveillance programs PRISM and UPSTRAM;Footnote 7 and (3) bulk collection of communications data (i.e., metadata) from internet service providers.Footnote 8
In 2018, a chamber of the ECtHR issued a decision that, for the most part, followed its prior case law in Weber, Liberty, Zakharov, and Szabó and Vissy.Footnote 9 The court reaffirmed that mass surveillance programs do not violate human rights law per se, and that they fall within states' general margin of appreciation.Footnote 10 While necessary in a democratic society, such programs nonetheless need to comply with certain standards—namely the principles of legality, proportionality, adequate safeguards, ex ante authorization, ex post review, transparency, access to remedies, and accountability.Footnote 11 Applying these standards, the Chamber concluded that the U.K. surveillance program violated Articles 8 and 10 of the convention “in some aspects,”Footnote 12 but the broader permissibility of these programs led the applicants to refer the case to the General Chamber.
The Grand Chamber's Decision
Within the limits of this note, it is impossible to analyze the entire decision. Instead, the note will highlight two of its core features, as follows.
The “End-to-End Safeguards” Framework and its Application to UK Mass Surveillance Programs
Perhaps the most foundational development in the case was the Grand Chamber's rejection of the old “Weber Six.” As I have explained in prior writing,Footnote 13 these six “minimum safeguards” were first introduced in the Weber and Saravia v. Germany decision of 2006 as a framework for analyzing the sufficiency of domestic legal surveillance statutes.Footnote 14 The Grand Chamber instead embraces what we might call the “BBW Eight,” a wider set of criteria to be considered both in the abstract and in the specific application of each program, as part of a “global assessment” of those programs' internal checks and balances and evidence of actual abuse.Footnote 15 These criteria include:
1. the grounds on which bulk interception may be authorised;
2. the circumstances in which an individual's communications may be intercepted;
3. the procedure to be followed for granting authorisation;
4. the procedures to be followed for selecting, examining and using intercept material;
5. the precautions to be taken when communicating the material to other parties;
6. the limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed;
7. the procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance;
8. the procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance.Footnote 16
Applying these criteria, the GC identified a number of “fundamental deficiencies” in the United Kingdom's bulk interception regime. In particular, the Grand Chamber focused on the fact that the programs lacked independent authorization (but rather were based on authorization from the executive, the Secretary of State), that the categories of general selectors (or search terms) to be used were not sufficiently specified in the law, and that when specific identifiers were applied to an individual, they were not subject to further internal scrutiny.Footnote 17 The Grand Chamber found similar deficiencies in the United Kingdom's program for bulk acquisition of metadata from service providers. The Grand Chamber concluded that the program was not “in accordance with the law” as authorities' access to data was not limited to the purpose of combatting “serious crime” or subject to review by an independent body.Footnote 18 In addition to these Article 8 violations, the Court also found that both programs violated Article 10 as they lacked necessary safeguards to protect journalistic sources and their confidential communications.Footnote 19
The Grand Chamber's Limited Theoretical Analysis of the Intelligence Sharing Regime and Issues of Extraterritorial Application
As Marko Milanovic has demonstrated at great length, foreign mass surveillance programs trigger complex legal and theoretical questions. These programs both challenge the very application of human rights law extraterritoriallyFootnote 20 and, where intelligence from such programs is shared across borders, they further introduce complications for the effective application of human rights frameworks.Footnote 21
The Grand Chamber hardly addresses either issue sufficiently. On the matter of extraterritorial application, the Court simply accepts the fact that the U.K. Government did not raise an objection on this point to assume that cross-border surveillance simply falls within the jurisdictional competence of the Court, and therefore requires no further analysis.Footnote 22 Whether one can read into this decision a nod by the Court as to its explicit position on this issue, were it ever to be raised directly, remains unknown.Footnote 23
On the issue of intelligence-sharing regimes, the Grand Chamber acknowledged the Court's failure to date to set “specific guidance” for such regimes. The Grand Chamber thus proposes a general framework, but one that lacks detail and inadequately addresses all possible scenarios and complications that such regimes introduce. The framework proposed has only four components: (1) domestic law must clearly set the circumstances under which intelligence might be shared; (2) the transferring state must ensure the receiving state has safeguards in place to prevent abuse; (3) heightened safeguards must be in place in the case of material requiring special confidentiality; and (4) the transfer should be subject to independent control.Footnote 24 Notice that this four-pronged framework for intelligence sharing is explicitly set apart from the far more scrutinized “end-to-end safeguards” model the Grand Chamber introduced for direct interception and collection. This distinction was explicitly rejected by some of the judges who wrote separate opinions.Footnote 25 Applying this rather limited framework to the U.K.–U.S. intelligence sharing, the Grand Chamber concludes that the United Kingdom's system for solicitation and receipt of SIGINT from partner agencies was in compliance with the Convention.Footnote 26
Conclusion
Some consider the Chamber's decision, which was mostly reaffirmed by the Grand Chamber decision, as a “victory for the fundamental rights to privacy and freedom of expression.”Footnote 27 Others believe the Grand Chamber's decision “misses the mark in the era of big data”Footnote 28 and merely entrenches a form of “procedural fetishism.”Footnote 29 This was one of Judge Pinto de Albuquerque's main arguments in his partly concurring and partly dissenting opinion where he noted that the Grand Chamber's “intention to accord leeway for a discretionary execution” of surveillance programs both “weaken[s] the Court's authority” and “water[s] down the standard-setting value of this judgement.”Footnote 30
It is safe to assume that mass surveillance programs will continue to trigger human rights applications before the ECtHR. The ink has therefore not yet dried on the evolution of the Court's jurisprudence in the years to come. For now, BBW sets the precedent from which future benches will likely begin.
GRAND CHAMBER
CASE OF BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM
(Applications nos. 58170/13, 62322/14 and 24960/15)
JUDGMENT
Art 8 • Private life • Convention compliance of secret surveillance regime including bulk interception of communications and intelligence sharing • Need to develop case-law in light of important differences between targeted interception and bulk interception • Adapted test for examining bulk interception regimes through global assessment • Focus on “end-to-end safeguards” to take into account the increasing degree of intrusion with privacy rights as the bulk interception process moves through different stages • Fundamental deficiencies present in bulk interception regime, through absence of independent authorisation, failure to include categories of selectors in the application for a warrant, and failure to subject selectors linked to an individual to prior internal authorisation • Sufficient foreseeability and safeguards in regime for receipt of intelligence from foreign intelligence services • Regime for acquisition of communications data from communications service providers not “in accordance with law”
Art 10 • Freedom of expression • Insufficient protection of confidential journalist material under electronic surveillance schemes
STRASBOURG
25 May 2021
This judgment is final but it may be subject to editorial revision.
In the case of Big Brother Watch and Others v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Robert Spano, President,
Jon Fridrik Kjølbro,
Angelika Nußberger,
Paul Lemmens,
Yonko Grozev,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Iulia Antoanella Motoc, Carlo Ranzoni,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Marko Bošnjak,
Tim Eicke,
Darian Pavli,
Erik Wennerström,
Saadet Yüksel, judges,
and Søren Prebensen, Deputy Grand Chamber Registrar,
Having deliberated in private on 11 July 2019, on 4 and 6 September 2019 and on 17 February 2021,
Delivers the following judgment, which was adopted on the last-mentioned date:
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THE LAW
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II. THE BULK INTERCEPTION OF COMMUNICATIONS
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B. The alleged violation of Article 8 of the Convention
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4. The Court's assessment
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(c) Whether the interference was justified
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(iii) The approach to be followed in bulk interception cases
348. It is clear that the first two of the six “minimum safeguards” which the Court, in the context of targeted interception, has found should be defined clearly in domestic law in order to avoid abuses of power (that is, the nature of offences which may give rise to an interception order and the categories of people liable to have their communications intercepted- … are not readily applicable to a bulk interception regime. Similarly, the requirement of “reasonable suspicion”, which can be found in the Court's case-law on targeted interception in the context of criminal investigations is less germane in the bulk interception context, the purpose of which is in principle preventive, rather than for the investigation of a specific target and/or an identifiable criminal offence. Nevertheless, the Court considers it imperative that when a State is operating such a regime, domestic law should contain detailed rules on when the authorities may resort to such measures. In particular, domestic law should set out with sufficient clarity the grounds upon which bulk interception might be authorised and the circumstances in which an individual's communications might be intercepted. The remaining four minimum safeguards defined by the Court in its previous judgments — that is, that domestic law should set out a limit on the duration of interception, the procedure to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which intercepted data may or must be erased or destroyed — are equally relevant to bulk interception.
349. In its case-law on targeted interception, the Court has had regard to the arrangements for supervising and reviewing the interception regime (see Roman Zakharov, cited above, §§ 233–234). In the context of bulk interception the importance of supervision and review will be amplified, because of the inherent risk of abuse and because the legitimate need for secrecy will inevitably mean that, for reasons of national security, States will often not be at liberty to disclose information concerning the operation of the impugned regime.
350. Therefore, in order to minimise the risk of the bulk interception power being abused, the Court considers that the process must be subject to “end-to-end safeguards”, meaning that, at the domestic level, an assessment should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the operation are being defined; and that the operation should be subject to supervision and independent ex post facto review. In the Court's view, these are fundamental safeguards which will be the cornerstone of any Article 8 compliant bulk interception regime (see also the report of the Venice Commission, at paragraph 197 above, which similarly found that two of the most significant safeguards in a bulk interception regime were the authorisation and oversight of the process).
351. Turning first to authorisation, the Grand Chamber agrees with the Chamber that while judicial authorisation is an “important safeguard against arbitrariness” it is not a “necessary requirement” (see paragraphs 318–320 of the Chamber judgment). Nevertheless, bulk interception should be authorised by an independent body; that is, a body which is independent of the executive.
352. Furthermore, in order to provide an effective safeguard against abuse, the independent authorising body should be informed of both the purpose of the interception and the bearers or communication routes likely to be intercepted. This would enable the independent authorising body to assess the necessity and proportionality of the bulk interception operation and also to assess whether the selection of bearers is necessary and proportionate to the purposes for which the interception is being conducted.
353. The use of selectors – and strong selectors in particular – is one of the most important steps in the bulk interception process, as this is the point at which the communications of a particular individual may be targeted by the intelligence services. However, while some systems allow for the prior authorisation of categories of selectors (see, for example, the Swedish system described in detail in the judgment in Centrum för rättvisa v. Sweden (application no. 35252/08)), the Court notes that the Governments of both the United Kingdom and the Netherlands have submitted that any requirement to explain or substantiate selectors or search criteria in the authorisation would seriously restrict the effectiveness of bulk interception (see paragraphs 292 and 307 above). This was accepted by the IPT, which found that the inclusion of the selectors in the authorisation would “unnecessarily undermine and limit the operation of the warrant and be in any event entirely unrealistic” (see paragraph 49 above).
354. Taking into account the characteristics of bulk interception (see paragraphs 344–345 above), the large number of selectors employed and the inherent need for flexibility in the choice of selectors, which in practice may be expressed as technical combinations of numbers or letters, the Court would accept that the inclusion of all selectors in the authorisation may not be feasible in practice. Nevertheless, given that the choice of selectors and query terms determines which communications will be eligible for examination by an analyst, the authorisation should at the very least identify the types or categories of selectors to be used.
355. Moreover, enhanced safeguards should be in place when strong selectors linked to identifiable individuals are employed by the intelligence services. The use of every such selector must be justified – with regard to the principles of necessity and proportionality – by the intelligence services and that justification should be scrupulously recorded and be subject to a process of prior internal authorisation providing for separate and objective verification of whether the justification conforms to the aforementioned principles.
356. Each stage of the bulk interception process – including the initial authorisation and any subsequent renewals, the selection of bearers, the choice and application of selectors and query terms, and the use, storage, onward transmission and deletion of the intercept material – should also be subject to supervision by an independent authority and that supervision should be sufficiently robust to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Other, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106 and Kennedy, cited above, §§ 153 and 154). In particular, the supervising body should be in a position to assess the necessity and proportionality of the action being taken, having due regard to the corresponding level of intrusion into the Convention rights of the persons likely to be affected. In order to facilitate this supervision, detailed records should be kept by the intelligence services at each stage of the process.
357. Finally, an effective remedy should be available to anyone who suspects that his or her communications have been intercepted by the intelligence services, either to challenge the lawfulness of the suspected interception or the Convention compliance of the interception regime. In the targeted interception context, the Court has repeatedly found the subsequent notification of surveillance measures to be a relevant factor in assessing the effectiveness of remedies before the courts and hence the existence of effective safeguards against the abuse of surveillance powers. However, it has acknowledged that notification is not necessary if the system of domestic remedies permits any person who suspects that his or her communications are being or have been intercepted to apply to the courts; in other words, where the courts' jurisdiction does not depend on notification to the interception subject that there has been an interception of his or her communications (see Roman Zakharov, cited above, § 234 and Kennedy, cited above, § 167).
358. The Court considers that a remedy which does not depend on notification to the interception subject could also be an effective remedy in the context of bulk interception; in fact, depending on the circumstances it may even offer better guarantees of a proper procedure than a system based on notification. Regardless of whether material was acquired through targeted or bulk interception, the existence of a national security exception could deprive a notification requirement of any real practical effect. The likelihood of a notification requirement having little or no practical effect will be more acute in the bulk interception context, since such surveillance may be used for the purposes of foreign intelligence gathering and will, for the most part, target the communications of persons outside the State's territorial jurisdiction. Therefore, even if the identity of a target is known, the authorities may not be aware of his or her location.
359. The powers and procedural guarantees an authority possesses are relevant in determining whether a remedy is effective. Therefore, in the absence of a notification requirement it is imperative that the remedy should be before a body which, while not necessarily judicial, is independent of the executive and ensures the fairness of the proceedings, offering, in so far as possible, an adversarial process. The decisions of such authority shall be reasoned and legally binding with regard, inter alia, to the cessation of unlawful interception and the destruction of unlawfully obtained and/or stored intercept material (see, mutatis mutandis, Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 120, ECHR 2006-VII and also Leander, cited above, §§ 81–83 where the lack of power to render a legally binding decision constituted a main weakness in the control offered).
360. In the light of the above, the Court will determine whether a bulk interception regime is Convention compliant by conducting a global assessment of the operation of the regime. Such assessment will focus primarily on whether the domestic legal framework contains sufficient guarantees against abuse, and whether the process is subject to “end-to-end safeguards” (see paragraph 350 above). In doing so, it will have regard to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92).
361. In assessing whether the respondent State acted within its margin of appreciation (see paragraph 347 above), the Court would need to take account of a wider range of criteria than the six Weber safeguards. More specifically, in addressing jointly “in accordance with the law” and “necessity” as is the established approach in this area (see Roman Zakharov, cited above, § 236 and Kennedy, cited above, § 155), the Court will examine whether the domestic legal framework clearly defined:
1. the grounds on which bulk interception may be authorised;
2. the circumstances in which an individual's communications may be intercepted;
3. the procedure to be followed for granting authorisation;
4. the procedures to be followed for selecting, examining and using intercept material;
5. the precautions to be taken when communicating the material to other parties;
6. the limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed;
7. the procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance;
8. the procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance.
362. Despite being one of the six Weber criteria, to date the Court has not yet provided specific guidance regarding the precautions to be taken when communicating intercept material to other parties. However, it is now clear that some States are regularly sharing material with their intelligence partners and even, in some instances, allowing those intelligence partners direct access to their own systems. Consequently, the Court considers that the transmission by a Contracting State to foreign States or international organisations of material obtained by bulk interception should be limited to such material as has been collected and stored in a Convention compliant manner and should be subject to certain additional specific safeguards pertaining to the transfer itself. First of all, the circumstances in which such a transfer may take place must be set out clearly in domestic law. Secondly, the transferring State must ensure that the receiving State, in handling the data, has in place safeguards capable of preventing abuse and disproportionate interference. In particular, the receiving State must guarantee the secure storage of the material and restrict its onward disclosure. This does not necessarily mean that the receiving State must have comparable protection to that of the transferring State; nor does it necessarily require that an assurance is given prior to every transfer. Thirdly, heightened safeguards will be necessary when it is clear that material requiring special confidentiality – such as confidential journalistic material – is being transferred. Finally, the Court considers that the transfer of material to foreign intelligence partners should also be subject to independent control.
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364. For the reasons identified at paragraph 342 above, the Court is not persuaded that the acquisition of related communications data through bulk interception is necessarily less intrusive than the acquisition of content. It therefore considers that the interception, retention and searching of related communications data should be analysed by reference to the same safeguards as those applicable to content.
(iv) The Court's assessment of the case at hand
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(4) Conclusion
424. The Court accepts that bulk interception is of vital importance to Contracting States in identifying threats to their national security. This has been recognised by the Venice Commission (see paragraph 196 above) and was the position adopted by the respondent Government as well as the Governments of France and the Netherlands in their third party interventions (see paragraphs 300 and 303 above). It was also the conclusion of the Independent Reviewer of Terrorism Legislation, who, having examined a great deal of closed material, concluded that bulk interception was an essential capability: first, because terrorists, criminals and hostile foreign intelligence services had become increasingly sophisticated at evading detection by traditional means; and secondly, because the nature of the global Internet meant that the route a particular communication would travel had become hugely unpredictable. Although he and his team considered alternatives to bulk interception (including targeted interception, the use of human sources and commercial cyber-defence products), they concluded that no alternative or combination of alternatives would be sufficient to substitute for the bulk interception power (see paragraph 166 above).
425. Nonetheless, the Court recalls that there is considerable potential for bulk interception to be abused in a manner adversely affecting the rights of individuals to respect for private life (see paragraph 347 above). Therefore, in a State governed by the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in the object and purpose of Article 8 (see Roman Zakharov, cited above, § 228), the Court considers that, when viewed as a whole, the section 8(4) regime, despite its safeguards, including some robust ones as highlighted above (see, for example, paragraphs 412 and 415 above), did not contain sufficient “end-to-end” safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. In particular, it has identified the following fundamental deficiencies in the regime: the absence of independent authorisation, the failure to include the categories of selectors in the application for a warrant, and the failure to subject selectors linked to an individual to prior internal authorisation (see paragraphs 377–382 above). These weaknesses concerned not only the interception of the contents of communications but also the interception of related communications data (see paragraph 416 above). While the IC Commissioner provided independent and effective oversight of the regime, and the IPT offered a robust judicial remedy to anyone who suspected that his or her communications had been intercepted by the intelligence services, these important safeguards were not sufficient to counterbalance the shortcomings highlighted at paragraphs 377–382 above.
426. In view of the aforementioned shortcomings, the Court finds that section 8(4) did not meet the “quality of law” requirement and was therefore incapable of keeping the “interference” to what was “necessary in a democratic society”.
427. There has accordingly been a violation of Article 8 of the Convention.
C. The alleged violation of Article 10 of the Convention
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3. The Court's assessment
(a) General principles on the protection of journalists' sources
442. As freedom of expression constitutes one of the essential foundations of a democratic society, the Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. The safeguards to be afforded to the press are of particular importance, and the protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public about matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information may be affected adversely (see, inter alia, Goodwin v. the United Kingdom, no. 17488/90, § 39, 27 March 1996; Sanoma Uitgevers B.V., cited above, § 50; and Weber and Saravia, cited above, § 143).
443. Orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure; and on members of the public, who have an interest in receiving information imparted through anonymous sources. There is, however, “a fundamental difference” between the authorities ordering a journalist to reveal the identity of his or her sources, and the authorities carrying out searches at a journalist's home and workplace with a view to uncovering his or her sources (compare Goodwin, cited above, § 39, with Roemen and Schmit v. Luxembourg, no. 51772/99, § 57, ECHR 2003-IV). The latter, even if unproductive, constitutes a more drastic measure than an order to divulge a source's identity, since investigators who raid a journalist's workplace have access to all the documentation held by the journalist (see Roemen and Schmit, cited above, § 57).
444. An interference with the protection of journalistic sources cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest (see Sanoma Uitgevers B.V., cited above, § 51; Goodwin, cited above, § 39; Roemen and Schmit, cited above, § 46; and Voskuil v. the Netherlands, no. 64752/01, § 65, 22 November 2007). Furthermore, any interference with the right to protection of journalistic sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake (see Sanoma Uitgevers B.V., cited above, §§ 88–89). First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources' identity if it does not (see Sanoma Uitgevers B.V., cited above, §§ 88–90).
445. Given the preventive nature of such review the judge or other independent and impartial body must be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be assessed properly. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist's sources (see Sanoma Uitgevers B.V., cited above, § 92 and Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII). In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk (see, mutatis mutandis, Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 62–66, ECHR 2007-XI).
(b) Article 10 in the bulk interception context
446. In Weber and Saravia the Court recognised that the “strategic monitoring” regime had interfered with the first applicant's freedom of expression as a journalist. However, in so finding it considered it decisive that the surveillance measures were not aimed at monitoring journalists or uncovering journalistic sources. As such, it found that the interference with the first applicant's freedom of expression could not be characterised as particularly serious and, in view of the attendant safeguards, it declared her complaints inadmissible as manifestly ill-founded (see Weber and Saravia, cited above, §§ 143–145 and 151).
(c) The approach to be adopted in the present case
447. Under the section 8(4) regime, confidential journalistic material could have been accessed by the intelligence services either intentionally, through the deliberate use of selectors or search terms connected to a journalist or news organisation, or unintentionally, as a “bycatch” of the bulk interception operation.
448. Where the intention of the intelligence services is to access confidential journalistic material, for example, through the deliberate use of a strong selector connected to a journalist, or where, as a result of the choice of such strong selectors, there is a high probability that such material will be selected for examination, the Court considers that the interference will be commensurate with that occasioned by the search of a journalist's home or workplace; regardless of whether or not the intelligence services' intention is to identify a source, the use of selectors or search terms connected to a journalist would very likely result in the acquisition of significant amounts of confidential journalistic material which could undermine the protection of sources to an even greater extent than an order to disclose a source (see Roemen and Schmit, cited above, § 57). Therefore, the Court considers that before the intelligence services use selectors or search terms known to be connected to a journalist, or which would make the selection of confidential journalistic material for examination highly probable, the selectors or search terms must have been authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether they were “justified by an overriding requirement in the public interest” and, in particular, whether a less intrusive measure might have sufficed to serve the overriding public interest (see Sanoma Uitgevers B.V., cited above, §§ 90–92).
449. Even where there is no intention to access confidential journalistic material, and the selectors and search terms used are not such as to make the selection of confidential journalistic material for examination highly probable, there will nevertheless be a risk that such material could be intercepted, and even examined, as a “bycatch” of a bulk interception operation. In the Court's view, this situation is materially different from the targeted surveillance of a journalist through either the section 8(1) or the section 8(4) regimes. As the interception of any journalistic communications would be inadvertent, the degree of interference with journalistic communications and/or sources could not be predicted at the outset. Consequently, it would not be possible at the authorisation stage for a judge or other independent body to assess whether any such interference would be “justified by an overriding requirement in the public interest” and, in particular, whether a less intrusive measure might have sufficed to serve the overriding public interest.
450. In Weber and Saravia the Court held that the interference with freedom of expression caused by strategic monitoring could not be characterised as particularly serious as it was not aimed at monitoring journalists and the authorities would know only when examining the intercepted telecommunications, if at all, that a journalist's communications had been monitored (see Weber and Saravia, cited above, § 151). Therefore, it accepted that the initial interception, without examination of the intercepted material, did not constitute a serious interference with Article 10 of the Convention. Nevertheless, as the Court has already observed, in the current, increasingly digital, age technological capabilities have greatly increased the volume of communications traversing the global Internet, and as a consequence surveillance which is not targeted directly at individuals has the capacity to have a very wide reach indeed, both within and without the territory of the surveilling State (see paragraphs 322–323 above). As the examination of a journalist's communications or related communications data by an analyst would be capable of leading to the identification of a source, the Court considers it imperative that domestic law contain robust safeguards regarding the storage, examination, use, onward transmission and destruction of such confidential material. Moreover, even if a journalistic communication or related communications data have not been selected for examination through the deliberate use of a selector or search term known to be connected to a journalist, if and when it becomes apparent that the communication or related communications data contain confidential journalistic material, their continued storage and examination by an analyst should only be possible if authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether continued storage and examination is “justified by an overriding requirement in the public interest”.
(d) Application of the aforementioned test to the facts of the present case
451. In Weber and Saravia the Court expressly recognised that the impugned surveillance regime had interfered with the first applicant's right to freedom of expression as a journalist (see Weber and Saravia, cited above, §§ 143–145). In the present case, the Court has accepted that the operation of the section 8(4) regime interfered with all of the applicants' rights under Article 8 of the Convention (see paragraphs 324–331 above). As the applicants in the second of the joined cases' were a newsgathering organisation and a journalist respectively, the Court would accept that the section 8(4) regime also interfered with their right under Article 10 of the Convention to freedom of expression as journalists.
452. As already noted, the section 8(4) regime had a clear basis in domestic law (see paragraphs 365 and 366 above). However, in assessing foreseeability and necessity under Article 8 of the Convention, the Court identified the following deficiencies in the regime and its attendant safeguards: the absence of independent authorisation (see paragraph 377 above); the failure to identify the categories of selectors in the application for a warrant (see paragraphs 381–382 above); and the absence of prior internal authorisation for selectors linked to an identifiable individual (see paragraph 382 above).
453. Nonetheless, some additional safeguards in respect of confidential journalistic material were set out in paragraphs 4.1–4.3 and 4.26–4.31 of the IC Code (see paragraph 96 above). According to paragraph 4.1, any application for a warrant had to state whether the interception was likely to give rise to a collateral infringement of privacy, including where journalistic communications were involved and, where possible, it had to specify the measures to be taken to reduce the extent of the collateral intrusion. However, paragraph 4.1 only required the Secretary of State to take these circumstances and measures into account when considering an application for a section 8(1) warrant, that is, a warrant authorising targeted interception. Paragraph 4.2 further provided that “particular consideration should also be given” in cases where confidential journalistic material might have been involved, and paragraph 4.26 stated that “particular consideration” had to be given to the interception of communications that involved confidential journalistic material.
454. According to the Government paragraph 4.28 also applied to confidential journalistic material. Where the intention was to acquire confidential personal information, paragraph 4.28 indicated that the reasons and the specific necessity and proportionality of doing so had to be documented clearly. If the acquisition of such material was likely but not intended, any possible mitigation steps had to be considered and, if none were available, consideration had to be given to whether special handling arrangements were required within the intercepting agency (see paragraph 96 above). The Court notes, however, that in paragraph 4.26 of the IC Code, “confidential personal information” appeared to be something distinct from “confidential journalistic material” (see paragraph 96 above).
455. As for the storage of confidential material, paragraph 4.29 of the IC Code provided that such material could only be retained where it was necessary and proportionate for one of the authorised purposes in section 15(4) of RIPA, and it had to be destroyed securely when it was no longer needed for one of those purposes (see paragraph 96 above). Furthermore, according to paragraph 4.30, if it was retained or disseminated to an outside body, reasonable steps had to be taken to mark the information as confidential. Where there was any doubt as to the lawfulness of the proposed dissemination of confidential information, advice had to be sought from a legal adviser within the relevant intercepting agency and before any further dissemination of the material could take place (see paragraph 96 above). Finally paragraph 4.31 required that the IC Commissioner be notified of the retention of such material as soon as reasonably practicable, and that such material be made available to him on request (see paragraph 96 above).
456. In light of the above, the Court would accept that the safeguards in the IC Code concerning the storage, onward transmission and destruction of confidential journalistic material were adequate. However, the additional safeguards in the IC Code did not address the weaknesses identified by the Court in its analysis of the regime under Article 8 of the Convention, nor did they satisfy the requirements identified by the Court at paragraphs 448–450 above. In particular, there was no requirement that the use of selectors or search terms known to be connected to a journalist be authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether it was “justified by an overriding requirement in the public interest” and whether a less intrusive measure might have sufficed to serve the overriding public interest. On the contrary, where the intention was to access confidential journalistic material, or that was highly probable in view of the use of selectors connected to a journalist, all that was required was that the reasons for doing so, and the necessity and proportionality of doing so, be documented clearly.
457. Moreover, there were insufficient safeguards in place to ensure that once it became apparent that a communication which had not been selected for examination through the deliberate use of a selector or search term known to be connected to a journalist nevertheless contained confidential journalistic material, it could only continue to be stored and examined by an analyst if authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether its continued storage and examination was “justified by an overriding requirement in the public interest”. Instead, all that was required by paragraph 4.2 of the IC Code was that “particular consideration” be given to any interception which might have involved the interception of confidential journalistic material, including consideration of any possible mitigation steps (see paragraph 96 above).
458. In view both of these weakness, and those identified by the Court in its consideration of the complaint under Article 8 of the Convention, it finds that there has also been a breach of Article 10 of the Convention by virtue of the operation of the section 8(4) regime.
III. THE RECEIPT OF INTELLIGENCE FROM FOREIGN INTELLIGENCE SERVICES
A. Article 8 of the Convention
…
3. The merits
…
(d) The Court's assessment
(i) The applicable test
495. In the Chamber's view, the interception of communications by foreign intelligence services could not engage the responsibility of a receiving State, or fall within that State's jurisdiction within the meaning of Article 1 of the Convention, even if the interception was carried out at that State's request (see paragraph 420 of the Chamber judgment). First of all, in so far as some of the third parties had invoked the ILC Articles, the Chamber considered that these would only be relevant if the foreign intelligence services were placed at the disposal of the receiving State and were acting in exercise of elements of the governmental authority of that State (Article 6); if the receiving State aided or assisted the foreign intelligence services in intercepting the communications where that amounted to an internationally wrongful act for the State responsible for the services, the receiving State was aware of the circumstances of the internationally wrongful act, and the act would have been internationally wrongful if committed by the receiving State (Article 16); or if the receiving State exercised direction or control over the foreign Government (Article 17). Secondly, according to the Court's case-law the interception of communications by a foreign intelligence service could only fall within the receiving State's jurisdiction if that State was exercising authority or control over the foreign intelligence service (see, for example, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 130–139, ECHR 2011 and Jaloud v. the Netherlands [GC], no. 47708/08, §§ 139 and 151 ECHR 2014).
496. The Grand Chamber agrees with the Chamber that none of these elements were present in the situation under consideration and, indeed, in their pleadings before the Grand Chamber the applicants have not suggested that they were. Therefore, any interference with Article 8 of the Convention could only lie in the initial request and the subsequent receipt of intercept material, followed by its subsequent storage, examination and use by the intelligence services of the receiving State.
497. The protection afforded by the Convention would be rendered nugatory if States could circumvent their Convention obligations by requesting either the interception of communications by, or the conveyance of intercepted communications from, non-Contracting States; or even, although not directly in issue in the cases at hand, by obtaining such communications through direct access to those States' databases. Therefore, in the Court's view, where a request is made to a non-contracting State for intercept material the request must have a basis in domestic law, and that law must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov, cited above, § 228). It will also be necessary to have clear detailed rules which give citizens an adequate indication of the circumstances in which and the conditions on which the authorities are empowered to make such a request (see Roman Zakharov, cited above, § 229; Malone, cited above, § 67; Leander, cited above, § 51; Huvig, cited above, § 29; Kruslin, cited above, § 30; Valenzuela Contreras, cited above, § 46; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 75) and which provide effective guarantees against the use of this power to circumvent domestic law and/or the States' obligations under the Convention.
498. Upon receipt of the intercept material, the Court considers that the receiving State must have in place adequate safeguards for its examination, use and storage; for its onward transmission; and for its erasure and destruction. These safeguards, first developed by the Court in its case-law on the interception of communications by Contracting States, are equally applicable to the receipt, by a Contracting State, of solicited intercept material from a foreign intelligence service. If, as the Government contend, States do not always know whether material received from foreign intelligence services is the product of interception, then the Court considers that the same standards should apply to all material received from foreign intelligence services that could be the product of intercept.
499. Finally, the Court considers that any regime permitting the intelligence services to request either interception or intercept material from non-Contracting States, or to directly access such material, should be subject to independent supervision, and there should also be the possibility for independent ex post facto review.
(ii) Application of that test to the case at hand
500. The British-US Communication Intelligence Agreement of 5 March 1946 specifically permitted the exchange of material between the United States and the United Kingdom (see paragraph 103 above). However, details of the intelligence services' internal (or “below the waterline”) arrangements were only disclosed during the Liberty proceedings (see paragraphs 33–36 above). This new information was later incorporated into Chapter 12 of the IC Code (see paragraph 116 above) which, as already noted, was a public document, subject to the approval of both Houses of Parliament, and which had to be taken into account both by those exercising interception duties and by courts and tribunals (see paragraph 93–94 above). The Court has accepted that the provisions of the IC Code could be taken into consideration in assessing the foreseeability of the RIPA regime (see Kennedy, cited above, § 157 and paragraph 366 above) and the same must necessarily be true for the intelligence sharing regime.
501. Accordingly, the Court considers that the regime for requesting and receiving intelligence from non-Contracting States had a clear basis in domestic law and, following the amendment to the IC Code, that law was adequately accessible. As it undoubtedly pursued the legitimate aims of protecting national security, preventing disorder and crime and protecting the rights and freedoms of others, the Court will now – in line with its usual methodology (see paragraph 334 above) – assess, jointly, the foreseeability and necessity of the intelligence sharing regime.
502. Chapter 12 of the IC Code (see paragraph 116 above) follows the same approach as the one adopted by domestic legislation in respect of bulk interception. According to Chapter 12 the intelligence services could only make a request to a foreign government for unanalysed intercepted communications and/or associated communications data if a relevant interception warrant under RIPA had already been issued by the Secretary of State, the assistance of the foreign government was necessary to obtain the particular communications because they could not be obtained under the existing warrant (see paragraph 12.2 of the IC Code at paragraph 116 above), and it was necessary and proportionate for the intercepting agency to obtain those communications. For these purposes, a relevant RIPA interception warrant meant either a section 8(1) warrant in relation to the subject at issue; a section 8(4) warrant and an accompanying certificate which included one or more “descriptions of intercepted material” covering the subject's communications; or, where the subject was known to be within the British Islands, a section 8(4) warrant and an accompanying certificate which included one or more “descriptions of intercepted material” covering his or her communications, together with an appropriate section 16(3) modification.
503. Where exceptional circumstances existed, a request for communications could be made in the absence of a relevant RIPA interception warrant only if it did not amount to a deliberate circumvention of RIPA or otherwise frustrate its objectives (for example, because it was not technically feasible to obtain the communications via RIPA interception), and it was necessary and proportionate for the intercepting agency to obtain those communications. In such a case the request had to be considered and decided on by the Secretary of State personally, and, pursuant to the revised IC Code, notified to the IC Commissioner. According to information disclosed during the Liberty proceedings, and confirmed in the Government's submissions before both the Chamber and Grand Chamber, no request for intercept material had ever been made in the absence of an existing RIPA warrant (see paragraph 42 above).
504. In light of the foregoing, the Court considers that domestic law set down clear legal rules giving citizens an adequate indication of the circumstances in which and the conditions on which the authorities could request intercept material from a foreign State.
505. Where either a relevant section 8(1) or a section 8(4) warrant was already in place, that warrant would have been authorised by the Secretary of State. More specifically, it would appear from paragraph 12.5 of the IC Code, read together with the accompanying footnote, that where a request was based on an existing warrant that request would be made to, from or about specific selectors (that is, relating to a specific individual or individuals) and the Secretary of State would already have approved the request for the communications of those individuals. While, in exceptional circumstances, a request could be made in the absence of a relevant warrant, the Secretary of State personally had to approve the request and, if based on specific selectors, he or she personally had to consider and approve the examination of those communications by reference to such factors (see paragraph 116 above).
506. As the domestic legislation followed, with respect to such requests for intelligence sharing, the same approach as in bulk interception, and as national law explicitly provided that there should be no circumvention, there is no need for the Court to look separately at the authorisation procedure.
507. As for the safeguards for the examination, use, storage, onward transmission, erasure and destruction of the solicited intercept material, it was clear from paragraph 12.6 of the IC Code that intercepted content or related communications data obtained by the United Kingdom intelligence services from another State, which identified themselves as the product of intercept, had to be subject to the same internal rules and safeguards that applied to the same categories of content or data when they were obtained directly by the intercepting agencies as a result of interception under RIPA. Consequently, the safeguards in sections 15 and 16 of RIPA, as supplemented by the IC Code, applied equally to intercepted communications and communications data obtained from foreign intelligence services, provided that the material “identified itself as the product of intercept”.
508. The Court has examined the section 15 and section 16 safeguards in respect of the bulk interception regime and it was satisfied that the procedures for storing, accessing, examining and using the material obtained; for communicating the material to other parties; and for the erasure and destruction of the material obtained were sufficiently clear and afforded adequate protection against abuse (see paragraphs 384–405 above). In light of the Court's findings at paragraph 498 above, it notes that paragraph 12.6 of the IC does not extend the safeguards in sections 15 and 16 of RIPA, as supplemented by the IC Code, to all material received from foreign intelligence services that could be the product of intercept, limiting these safeguards only to material that identified itself as such; however, the Court does not consider this fact alone to be fatal to the Article 8 compliance of the intelligence sharing regime.
509. In the context of the section 8(4) regime, the Court had concerns about the exemption of related communications data from the section 16 safeguard. However, under the section 8(4) regime the State was able to intercept, store and search all packets of communications travelling across certain bearers. The blanket exemption of related communications data from the section 16 safeguard therefore meant that all of these data, regardless of whether they were of any intelligence interest, could be searched by the intelligence services apparently without restriction. Under Chapter 12 of the IC Code, on the other hand, content and related communications data were not requested by the intelligence services in bulk. Paragraph 12.5 of the IC Code, together with its accompanying footnote, indicated that where a request was based on an existing warrant that request would be made to, from or about specific selectors (that is, specified individuals) and the Secretary of State would already have approved the request for the communications of those individuals. While in exceptional circumstances a request could be made in the absence of a warrant, the Secretary of State personally had to approve the request and, if based on specific selectors, he or she personally had to consider and approve the examination of those communications by reference to such factors. If the request was not for specific selectors, any communications subsequently obtained could not be examined according to a factor referable to a person known to be in the British Islands unless the Secretary of State had approved the examination of those communications (see paragraph 116 above). In other words, the intelligence services either requested intelligence relating to an individual for whom the Secretary of State had already considered the necessity and proportionality of obtaining his or her communications; or the section 16 safeguard was applicable to the material obtained. As no request has yet been made without a warrant, it would seem that, to date, all requests have fallen into the first category.
510. Therefore, the Court considers that the United Kingdom had in place adequate safeguards for the examination, use and storage of the content and communications data received from intelligence partners; for the onward transmission of this material; and for its erasure and destruction.
511. Finally, the Court observes that a further layer of protection was provided by the IC Commissioner and the IPT (see paragraph 41 above). The IC Commissioner had oversight of the intelligence sharing regime: paragraph 12.7 of the IC Code (see paragraph 116 above) required him to be notified of all requests made in the absence of a warrant, and he already supervised the granting of warrants and the storage of material by the intelligence services.
512. In addition to the oversight of the IC Commissioner, the IPT provided ex post facto review of the intelligence sharing regime. As can be seen from the Liberty proceedings, it was open to anyone wishing to make either a specific or general complaint about the intelligence sharing regime to complain to the IPT; and, in response, the IPT was able to examine both the “above the waterline” and “below the waterline” arrangements in order to assess the Convention compliance of the regime.
513. Consequently, the Court considers that the regime for requesting and receiving intercept material was compatible with Article 8 of the Convention. There existed clear detailed rules which gave citizens an adequate indication of the circumstances in which and the conditions on which the authorities were empowered to make a request to a foreign intelligence service; domestic law contained effective guarantees against the use of such requests to circumvent domestic law and/or the United Kingdom's obligations under the Convention; the United Kingdom had in place adequate safeguards for the examination, use, storage, onward transmission, erasure and destruction of the material; and the regime was subject to independent oversight by the IC Commissioner and there was a possibility for ex post facto review by the IPT.
514. Accordingly, there has been no violation of Article 8 of the Convention.
B. Article 10 of the Convention
515. The applicants in the third of the joined cases also complained that the intelligence sharing regime had breached their rights under Article 10 of the Convention. In so far as that complaint related to their activities as NGOs, the Chamber declared it inadmissible for non-exhaustion of domestic remedies as the applicants had raised it too late in the domestic proceedings for it to be considered (see paragraph 473 of the Chamber judgment). This aspect of the complaint is therefore outwith the scope of the Grand Chamber's examination.
516. The applicants in the third of the joined cases also complained more generally about the Article 10 compliance of the intelligence sharing regime. Although this argument was raised before the IPT in good time, the Court would agree with the Chamber that it gives rise to no separate issue over and above that arising out of Article 8 of the Convention (see paragraph 474 of the Chamber judgment). It therefore considers that there has also been no violation of Article 10 of the Convention.
IV. ACQUISITION OF COMMUNICATIONS DATA FROM COMMUNICATIONS SERVICE PROVIDERS
A. Article 8 of the Convention
517. The applicants in the second of the joined cases complained that the regime for the acquisition of communications data under Chapter II of RIPA was incompatible with their rights under Article 8 of the Convention.
1. The Chamber judgment
518. At the date of the Chamber's examination of the case the Government of the United Kingdom was in the process of replacing the existing legal framework for conducting secret surveillance with the new IPA. The provisions in the new legislation governing the retention of communications data by CSPs were subject to a domestic legal challenge by Liberty. In the course of those proceedings, the Government conceded that the relevant provision was inconsistent with the requirements of EU law. Consequently, the High Court found Part 4 to be incompatible with fundamental rights in EU law since, in the area of criminal justice, access to retained data was not limited to the purpose of combating “serious crime”; nor was it subject to prior review by a court or an independent administrative body (see paragraph 190 above).
519. In view of both the primacy of EU law over United Kingdom law, and the Government's concession in the domestic proceedings that the provisions of IPA governing the retention of communications data by CSPs was incompatible with EU law, the Chamber considered it “clear” that domestic law required that any regime permitting the authorities to access data retained by CSPs should limit access to the purpose of combating “serious crime”, and that access should be subject to prior review by a court or independent administrative body. As the predecessor regime suffered from the same “flaws” as its successor, the Chamber found that it could not be in accordance with the law within the meaning of Article 8 of the Convention (see paragraphs 465–468 of the Chamber judgment).
2. The parties' submissions
520. The parties made no further submissions before the Grand Chamber in respect of this complaint.
3. The Court's assessment
521. The Government did not contest the Chamber's findings before the Grand Chamber. Furthermore, the latter finds no ground on which to disagree with the Chamber's conclusions.
522. Accordingly, the Court considers that in the present case there was a violation of Article 8 of the Convention on account of the fact that the operation of the regime under Chapter II of RIPA was not “in accordance with the law”.
B. Article 10 of the Convention
523. The applicants in the second of the joined cases also complained under Article 10 of the Convention about the regime for the acquisition of communications data from CSPs.
1. The Chamber judgment
524. The Chamber acknowledged that the Chapter II regime afforded enhanced protection where data were sought for the purpose of identifying a journalist's source. In particular, paragraph 3.77 of the Acquisition of Communications Data Code of Practice provided that where an application was intended to determine the source of journalistic information, there had to be an overriding requirement in the public interest, and such applications had to use the procedures of the Police and Criminal Evidence Act 1984 (“PACE”) to apply to a court for a production order to obtain these data. Pursuant to Schedule 1 to PACE, an application for a production order was made to a judge and, where the application related to material that consisted of or included journalistic material, the application had to be made inter partes. Internal authorisation could only be used if there was believed to be an immediate threat of loss of human life, and that person's life could be endangered by the delay inherent in the process of judicial authorisation (see paragraph 498 of the Chamber judgment).
525. Nevertheless, these provisions only applied where the purpose of the application was to determine a source; they did not apply in every case where there was a request for the communications data of a journalist, or where such collateral intrusion was likely. Furthermore, in cases concerning access to a journalist's communications data there were no special provisions restricting access to the purpose of combating “serious crime”. Consequently, the Chamber considered that the regime was not “in accordance with the law” for the purpose of the Article 10 complaint (see paragraphs 496–499 of the Chamber judgment).
2. The parties' submissions
526. The parties made no further submissions before the Grand Chamber in respect of this complaint.
3. The Court's assessment
527. The Government did not contest the Chamber's findings before the Grand Chamber. Furthermore, the latter finds no ground on which to disagree with the Chamber's conclusions.
528. Accordingly, the Court considers that in the present case there has also been a violation of Article 10 of the Convention on account of the fact that the operation of the regime under Chapter II of RIPA was not “in accordance with the law”.
…
FOR THESE REASONS, THE COURT
1. Holds, unanimously, that there has been a violation of Article 8 of the Convention in respect of the section 8(4) regime;
2. Holds, unanimously, that there has been a violation of Article 8 of the Convention in respect of the Chapter II regime;
3. Holds, by twelve votes to five, that there has been no violation of Article 8 of the Convention in respect of the receipt of intelligence from foreign intelligence services;
4. Holds, unanimously, that, in so far as it was raised by the applicants in the second of the joined cases, there has been a violation of Article 10 of the Convention in respect of the section 8(4) regime and the Chapter II regime.
5. Holds, by twelve votes to five, that there has been no violation of Article 10 of the Convention in respect of the receipt of intelligence from foreign intelligence services;
6. Holds, unanimously,
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) to the applicants in the first of the joined cases: EUR 227,500 (two hundred and twenty-seven thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(ii) to the applicants in the second of the joined cases: EUR 90,000 (ninety thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(iii) to the applicants in the third of the joined cases: EUR 36,000 (thirty-six thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7 Dismisses, unanimously, the remainder of the applicants' claim for just satisfaction.
Done in English and in French, and delivered at a hearing on 25 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Prebensen Robert Spano
Deputy to the Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Joint partly concurring opinion of Judges Lemmens, Vehabović and Bošnjak;
(b) Partly concurring and partly dissenting opinion of Judge Pinto de Albuquerque;
(c) Joint partly dissenting opinion of Judges Lemmens, Vehabović, Ranzoni and Bošnjak.
R.S.O.
S.C.P.
APPENDIX
List of applicants
1. In the present case, we agree with the majority on all counts in the operative part of the judgment, except for operative points 3 (no violation of Article 8 of the Convention in respect of the receipt of intelligence from foreign intelligence services) and 5 (no violation of Article 10 of the Convention in respect of the receipt of intelligence from foreign intelligence services). To show where we disagree with the outcome of the case, we are submitting a dissenting opinion jointly with our colleague Judge Ranzoni. In addition, we are submitting this concurring opinion to underline that while the present judgment as a whole is elegantly structured and largely clear in its message, it has also missed an excellent opportunity to fully uphold the importance of private life and correspondence when faced with interference in the form of mass surveillance.
I. INTRODUCTORY REMARKS
2. This case is about a balancing exercise in which legitimate interests pursued by the Contracting States have to be weighed against human rights and fundamental freedoms, notably those protected by Article 8 of the Convention. At the start of its assessment (paragraphs 322 and 323 of the judgment), the Grand Chamber extensively describes the nature of the modern threats facing the Contracting States and recognises how valuable bulk interception can be in identifying and preventing those threats. Furthermore, the judgment underlines a need for secrecy of operations in this domain which it considers to be legitimate, meaning that little if any information about a given scheme will be available to the public. While one may subscribe, to a certain extent, to this description of the legitimate interest in operating a bulk interception regime, there is no similar emphasis on the importance of privacy or any other private interest in those same preliminary remarks. Although this has no direct bearing upon the assessment of the bulk interception system under scrutiny, we would have preferred a more balanced introduction to this assessment.
3. Before embarking on an analysis of what we consider to be the weak points of the present judgment, it is worthwhile remembering that privacy is a fundamental precondition for a variety of fundamental individual interests, but also for the existence of a democratic society. It is essential for a person's well-being, autonomy, self-development, and ability to enter into meaningful relationships with other persons. It is also a necessary precondition for the enjoyment of civil rights and consequently for a person's status as a free and equal member of a democratic society. Encroachments on privacy do not merely diminish individual autonomy and mental and physical health, they also inhibit democratic self-governance.
4. First, privacy is important for a person's mental and physical health. The mere feeling that one is constantly being observed and evaluated by others can have serious effects on one's mental and physical well-being. It makes individuals internalise too much of their social behaviour, so that they feel guilty or ashamed because of any feelings or thoughts, desires or practices that they would not want to express publicly. Such tensions between the demands of their inner life and the pressures of self-presentation can lead to serious health problems.
5. Second, external observation and the pressures on self-presentation may obstruct “the promotion of liberty, autonomy, selfhood, human relations, and furthering the existence of a free society”Footnote 1. Surveillance is inhibiting because it diminishes the extent to which we can spontaneously and wholeheartedly relate to other people and engage in certain activities. A lack of privacy would have a stifling effect on our inner life, our relationships and ultimately our autonomy. “Thus will be lost … the inner personal core that is the source of criticism of convention, of creativity, rebellion and renewal”Footnote 2.
6. Third, privacy is essential for democratic self-governance. Mass surveillance exerts internal and external pressures to conform, making individuals submissive and deferential. In order to avoid outright oppression and give itself the varnish of legitimacy, there is an inherent danger that the State will utilise surveillance to ensure compliance and conformism. As George Orwell described in the novel Nineteen Eighty-Four:
“There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live – did live, from habit that became instinct – in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”Footnote 3
7. In securing a realm for unobserved activity, privacy fosters and encourages the moral autonomy of citizens, a central requirement of self-governance in democraciesFootnote 4. Only autonomous beings can truly govern themselves and only autonomous beings can truly enjoy all the civil rights, such as the right to vote, freedom of association and participation in civil society, the freedoms of thought and conscience, speech and expression, and freedom of religion, that are essential for self-governance. We cannot be said to fully enjoy the freedoms that these rights are supposed to afford us if our inner freedom is compromised.
8. But surveillance does not merely exert internal pressures on freedom. To the extent that citizens retain their autonomy, it also exerts external pressures on their freedom to exercise their civil rights. Just as living under constant social control makes us less likely to act according to our feelings and thoughts for fear of ostracism, living under constant government surveillance can make citizens just a little more cautious when engaging with their political convictions, a little less likely to freely associate, a little less likely to speak freely, a little less likely to dissent, a little less likely to run for public office. The aggregate effect of often merely marginal inhibitions can stifle what was once a free society, especially as people grow up in an environment of increased conformism and moral cowardice. US Supreme Court Justice William O. Douglas, writing the dissent in Osborn v. United States, impressionably describes as follows the threat that mass surveillance poses to our democratic freedoms:
“… The time may come when no one can be sure whether his words are being recorded for use at some future time; when everyone will fear that his most secret thoughts are no longer his own, but belong to the Government; when the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone. If a man's privacy can be invaded at will, who can say he is free? If his every word is taken down and evaluated, or if he is afraid every word may be, who can say he enjoys freedom of speech? If his every association is known and recorded, if the conversations with his associates are purloined, who can say he enjoys freedom of association? When such conditions obtain, our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished.”Footnote 5
9. To conclude, the development of new technologies enabling mass surveillance and more effective use of the information collected has increased threats to privacy as well as the risk of abuse of personal data. It is not our intention to assert that these threats and risks have already materialised on a large scale or have brought about the consequences discussed above. However, one should be properly aware of their existence when designing a system capable of preventing, detecting and sanctioning any abuse that might occur.
10. In our opinion, these considerations should have led the Court to attach significantly more weight to private life in general, and to confidentiality of correspondence in particular, when weighing them in the balance against the legitimate interests of the respondent State in operating its bulk interception scheme. Consequently, the Grand Chamber should have (a) accurately identified and attached proper weight to interferences with private life and correspondence; (b) introduced clear minimum safeguards capable of protecting individuals against arbitrary or excessive interference; and consequently (c) assessed the impugned bulk interception scheme in a stricter manner.
II. INTERFERENCES WITH PRIVATE LIFE AND CORRESPONDENCE
11. In paragraph 325 of the judgment, the majority describe the stages of the bulk interception system. They consider that the initial stage, described as the interception and initial retention of communications and related communications data, followed by the immediate discarding of parts of the communications, “does not constitute a particularly significant interference” (paragraph 330 of the judgment). We respectfully disagree. It is our belief that at this stage already, the interference is significant. First, by interception and initial retention, all communications of any individual flowing through selected bearers and all related communications data come into the hands of State authorities. Secondly, while it is true that at this stage, the content of those communications has not yet been analysed or brought to the attention of decision makers and thus cannot yet lead to any action being taken against a particular individual, the first stage is a sine qua non for any further stage. The exact extent of the communications and related data thereby gathered by the intelligence services is unknown. But there are reasons to believe that, on a regular basis, a large part of the communications of millions of individuals is intercepted. This situation is aggravated by the fact that the individuals concerned will, as a rule, not be aware of this interference. In such a situation, when people cannot know whether their communications are being targeted, but are aware that there exists a strong probability that this is happening, a third element of interference arises: people may adapt their behaviour, with many a serious consequence, as described above in paragraphs 3–8 of this separate opinion.
12. According to paragraph 330 of the judgment, parts of intercepted communications are discarded immediately. The Court is not in possession of any information as to how this “discarding” is performed. One may reasonably assume that it is not conducted randomly without any internal logic and that in this exercise, intelligence services apply certain criteria which separate rubbish from possibly useful material. The very fact that this act is performed in obscurity and on an unknown basis should, in our opinion, be a matter of serious concern. Such a lack of transparency, at the very least, can hardly meet the requirement of foreseeability, this in turn being one of the preconditions for the lawfulness of any interference with the rights protected by Article 8 of the Convention. Yet the majority fail to address this particular step in the bulk interception process in any way. We consider this to be an important shortcoming of the judgment.
III. MINIMUM SAFEGUARDS PROTECTING INDIVIDUALS AGAINST ARBITRARY OR EXCESSIVE INTERFERENCE
13. In paragraph 335, the judgment outlines the Court's case-law on six minimum requirements that should be set out in domestic law in order to avoid abuses of power in cases of interception of communications for the purposes of criminal investigation. It further explains that, in Roman Zakharov v. Russia ([GC], no. 47143/06, ECHR 2015), the Court held that the same six minimum safeguards also applied in cases where the interception was performed for reasons of national security. In the next step, the Grand Chamber identifies a need to develop and adapt these requirements to the specificities of bulk interception and, finally, outlines a list of eight criteria which the domestic legal framework must clearly define in order to comply with Article 8 of the Convention (paragraph 361 of the judgment).
14. That list is very well supported by arguments and can certainly serve as protection against arbitrariness and abuse. However, the criteria included in this list:
(a) do not clearly serve as self-standing minimum standards, as any lack of compliance with any of those standards appears to be “reparable” in the process of a global assessment;
(b) require clear definition of particular safeguards in domestic law, but do not set any minimum safeguards themselves; and
(c) do not provide for any clear substantive protection of an individual against disproportionate interference, in particular at the stage of application of strong selectors to the material gathered, and the procedural protection provided by these criteria is also insufficient.
15. As to (a), we would like to turn the reader's attention to paragraph 360 of the judgment, announcing a need for a global assessment of a particular bulk interception regime. While this may sound appealing, it necessarily erodes the importance of each safeguard. By contrast, we believe that each safeguard labelled as a minimum one can never be offset by any counterbalancing factors provided in respect of some other criterion. In other words, lack of compliance with a safeguard which is considered to be a minimum one should automatically lead to a finding of a violation of Article 8 of the Convention, regardless of whether a global assessment might reveal a more positive picture. Regrettably, the majority do not appear to have opted for such an approach. We would add that an approach setting minimum standards as absolute limits, as thick red lines that may not be crossed, would provide for a stricter and more foreseeable protection, which is of utmost importance in a field where the action of the State authorities is conducted with a high level of secrecy, as a result of which, in the words of the present judgment (see paragraph 322), little if any information about the operation of the scheme is available and such information as is available may be couched in terminology which is obscure.
16. In respect of (b), the majority state that the eight criteria outlined in paragraph 361 need to be clearly defined in the domestic legal framework. While this is a requirement to be welcomed, in particular from the point of view of foreseeability of the law, these criteria in themselves do not lay down minimum requirements in respect of the substantive or procedural conditions that need to be complied with in order to operate the bulk interception regime and to pass from its initial stage to the more intrusive ones. This flaw is partly remedied by the fact that certain (but not all) of those elements discussed in paragraphs 348–360 of the judgment are set out not only in descriptive passages referring to the existing case-law but also in prescriptive wording laying down certain requirements, particularly in respect of the authorisation of bulk interception in its specific stages. However, we argue that the requirements set by the majority do not go far enough in protecting an individual against arbitrary, excessive or abusive interferences with his or her private life and correspondence.
17. This brings us to our point (c). In the context of targeted interception, mostly for purposes of detecting and investigating criminal activity, the Court has referred to certain substantive safeguards against abuse. Thus, the Court has required that the nature of the offences which may give rise to an interception order be defined together with the categories of people liable to have their communications intercepted. Furthermore, on numerous occasions, the Court has had recourse to the requirement of reasonable suspicion. The majority simply consider that these safeguards are not readily applicable to bulk interception. While we can agree that they cannot be directly transposable, there remains a need for robust substantive protection to be developed, whereby safeguards developed in the framework of targeted interception for the purpose of combatting crime can serve as an excellent source of inspiration, as we will seek to explain below.
18. First, in contrast to targeted interception in crime prevention, bulk interception is largely used for purposes of national security. It is difficult to see why one should not expect the domestic legislation to clearly define the possible national security threats and the circumstances in which those threats may trigger bulk interception.
19. In respect of the second substantive requirement attached to targeted interception, namely the definition of categories of people liable to have their communications intercepted, one can acknowledge that a similar requirement would make little sense in the first stage of bulk interception, when all communications running through certain bearers are intercepted indiscriminately. Yet the breadth of the interference should not be an excuse for abandoning a particular safeguard. Additionally, at later stages of bulk interception, particularly when strong selectors are applied for the purpose of singling out and analysing the communications of an identified individual, the situation becomes largely comparable to that of targeted interception. Expecting the legal framework to define the categories of people that can be targeted by the application of strong selectors would not be an excessive, but rather a fully appropriate, requirement.
20. Third, the requirement of reasonable suspicion is an important protection against arbitrary and disproportionate interferences with several Convention rights. It refers to the probability that a criminal offence giving rise to an interference has been committed or is about to be committed. While bulk interception should not be used in crime investigation, but rather confined to national security purposes, we believe that a standard similar to reasonable suspicion should pertain to the grounds on which bulk interception may be authorised. This is particularly true when bulk interception starts targeting an identified individual through the application of strong selectors. To be clear, we consider that in a democratic society intelligence services may only inspect communications and related communication data of an individual once they can demonstrate to an objective observer that that individual may be engaged or is about to engage in activities infringing a specific national security interest, or is a person who is or may be in contact with individuals engaged in, or about to engage, in such activities. No such or similar requirement has been introduced by the majority in the present judgment.
21. Instead of these three safeguards, the majority have set an overly broad substantive requirement, namely that the grounds on which bulk interception may be authorised and the circumstances in which an individual's communications may be intercepted must be clearly defined in the domestic legal framework. Unfortunately, the reference to “grounds” and “circumstances” is rather vague, particularly in the absence of any reference to what such grounds and circumstances may or may not be. Furthermore, according to the language used in paragraph 361 of the judgment, the specific requirement relating to the grounds only applies to the stage of authorisation of bulk interception and not to any subsequent stage, thereby giving no indication as to whether any substantive requirement is attached, for example, to the application of strong selectors targeting the communications of an identified individual.
22. The lack of appropriate substantive protection has an important bearing upon the effectiveness of procedural protection. The main element of procedural protection is the requirement of prior authorisation, which the present judgment introduces both at the first stage of bulk interception and before the application of strong selectors. The crucial point of any prior authorisation is to verify whether the envisaged interference complies with the substantive criteria for such an interference. However, if the substantive criteria are vague, overly broad or even non-existent, the requirement of prior authorisation will necessarily fail to provide for sufficiently effective protection against arbitrariness and abuse.
23. In respect of the prior authorisation requirement, the judgment requires such authorisation to be exercised at the initial stage by a body that is independent from the executive. We can agree. However, we respectfully but strongly disagree that it suffices for the application of strong selectors relating to identifiable individuals to be subjected to a prior internal authorisation alone. Instead, we argue that at this stage, prior judicial control would be needed. While the existing case-law of the Court does not necessarily require judicial authorisation for targeted interception of communications of individuals, we believe that there are reasons for a reinforced standard of protection in cases of application of strong selectors in bulk interception. These reasons are as follows:
(a) Bulk interception, in contrast to targeted interception, is not limited to a specific category of people, and thus a much larger pool of communications is liable to be examined than in a case of targeted communications.
(b) Furthermore, a strong selector pertaining to an identified individual can, when applied, open the door to a much larger number of communications, namely wherever that specific individual is referred to, even if he or she has not engaged in those communications (as opposed to communicating over the communication means that he or she personally uses).
(c) In targeted interception for the purposes of law enforcement, a form of judicial control will usually occur somewhere down the line. For example, when evidence is obtained by targeted interception, it will be submitted in subsequent criminal proceedings, such that a court conducting those proceedings will be able to verify whether the targeted interception in that case complied with legal requirements. No such subsequent judicial control will normally occur in cases of bulk interception coupled with the application of strong selectors.
24. In stark contrast with this view, the majority consider that prior internal authorisation is sufficient. In our opinion, internal authorisation cannot provide for a level of protection against arbitrariness and abuse comparable to the protection offered by independent scrutiny. In particular, it is hard to imagine how a person having an organisational and, possibly, collegial connection with the requesting authority could properly assess a request in a fair and disinterested manner. It is probable that authorisation requirements will not be fully respected and, thus, the very purpose of this safeguard will not be met. This is even more likely in those High Contracting Parties where no long-standing tradition of democratic oversight of intelligence services exists.
25. We note that the Governments of the United Kingdom and the Netherlands have submitted that any requirement to explain or substantiate selectors or search criteria would seriously restrict the effectiveness of bulk interception (paragraph 353 of the judgment) and that the majority show some sympathy for this argument (paragraph 354 of the judgment). We cannot subscribe to this argument. We believe that in a democratic society, communications and related communications data of an identified individual may not be singled out and examined without that individual's consent unless very convincing reasons exist to do so. If an intelligence service or other authority is not able to articulate such reasons and demonstrate them before an independent institution, this should simply mean that it ought not to have any access to such communications. We acknowledge that occasionally a situation may arise where the regular authorisation process is too cumbersome to effectively neutralise a threat to national security, and that other solutions should be provided in this respect. However, if a robust authorisation system designed to properly protect human rights is perceived as an unnecessary hurdle, democratic society should be put on notice.
IV. ASSESSMENT OF THE BULK INTERCEPTION REGIME AT HAND
26. We agree with the other members of the Grand Chamber in their findings in points 1, 2 and 4 of the operative part of the judgment. That said, we believe that the assessment of certain features of the impugned regime does not go far enough and fails to properly identify some of its shortcomings.
27. As an example, we wish to direct the reader's attention to the grounds on which bulk interception could be authorised under the UK system (paragraphs 368–371 of the judgment). A bulk interception warrant could be issued if this was necessary (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) for the purpose of safeguarding the economic well-being of the United Kingdom in so far as those interests were also relevant to the interests of national security.
28. The purposes under (a) and (c) both made reference to interests of national security. It appears that neither national security nor its interests were anywhere defined. While we take note of the judgment's reference to the IC Commissioner's clarification of how practice perceived the term “national security” (paragraph 369 of the judgment), we argue that this clarification remained insufficient from the point of view of the foreseeability requirement. Furthermore, we have doubts as to whether the IC Commissioner's clarification can be assimilated to well established case-law which, according to the Court's jurisprudence, may compensate for vagueness in legislation. As a consequence of the absence of a clear definition, an individual could not be sure, even with the help of qualified advice, on what exact grounds his or her communications were liable to be intercepted and analysed by the intelligence services.
29. The purpose under (b) did not have the above-mentioned flaws of the purposes under (a) and (c). Serious crime was defined as an offence for which the perpetrator (assuming he or she was over the age of twenty-one and had no previous convictions) could reasonably be expected to be sentenced to imprisonment for a term of three years or more, or where the conduct involved the use of violence, resulted in substantial financial gain or was conducted by a large number of persons in pursuit of a common purpose (see paragraph 369 of the judgment). Such a definition covers a very broad scope of behaviour, which raises serious doubts regarding the proportionality of this ground. Furthermore, in a democratic society, intelligence services should not have any competence in combating crime, unless the criminal activities threaten national securityFootnote 6. The explanation of the respondent Government, namely that information obtained by bulk interception could not be used in the prosecution of a criminal offence, is in our opinion unconvincing. It appears that on the basis of the information thus obtained, law enforcement agencies could act, for example, by proceeding to conduct investigative measures or even arrests, this in turn producing evidence for the purpose of prosecution. It is likely that in a not so distant future, by exploring this particular ground, crime investigation might move from targeted surveillance to bulk interception of data.
V. CONCLUSION
30. There are rare occasions when the Court adjudicates on a case which shapes the future of our societies. The present one is such an example. The Grand Chamber has partly seized the opportunity and outlined a comprehensive set of principles which are aimed at protecting human rights and fundamental freedoms, notably those enshrined in Articles 8 and 10 of the Convention. However, for the reasons explained in this separate opinion, in performing the balancing exercise, the majority have failed to assign proper weight to private life and correspondence, which in several respects remain insufficiently protected in the face of interference by bulk interception. One may hope that in future cases raising questions of concrete interference with the rights of specific individuals, the Court will interpret and further develop the principles in a way which will properly uphold democratic society and the values it stands for.
I. Introduction (§ 1). . . . . . . . . . . . . . . . . [632]
II. Deconstruction of the Court's pro autoritate regime of bulk interception (§§ 2–18). . . . . . . . . . . . . . . . . [632]
A. Vague language (§ 2–3). . . . . . . . . . . . . . . . . [632]
B. Biased methodology (§§ 4–12). . . . . . . . . . . . . . . . . [633]
C. Defective regime of safeguards (§§ 13–15). . . . . . . . . . . . . . . . . [636]
D. Preliminary conclusion (§§ 16–18). . . . . . . . . . . . . . . . . [637]
III. Construction of a pro persona regime of bulk interception (§§ 19–34). . . . . . . . . . . . . . . . . [637]
A. Bulk interception of communications (§§ 19–29). . . . . . . . . . . . . . . . . [637]
B. Exchange of intercept data with foreign intelligence services (§§ 30–31). . . . . . . . . . . . . . . . . [639]
C. Bulk interception of related communications data (§ 32). . . . . . . . . . . . . . . . . [639]
D. Preliminary conclusion (§§ 33–34). . . . . . . . . . . . . . . . . [639]
IV. Critique of the impugned UK bulk interception regime (§§ 35-58). . . . . . . . . . . . . . . . . [642]
A. Bulk interception of communications under RIPA (§§ 35–49). . . . . . . . . . . . . . . . . [642]
B. Exchange of intercept data with foreign intelligence services under Chapter 12 of the IC Code (§§ 50–54). . . . . . . . . . . . . . . . . [644]
C. Bulk interception of related communications data under RIPA (§§ 55–57). . . . . . . . . . . . . . . . . [645]
D. Preliminary conclusion (§ 58). . . . . . . . . . . . . . . . . [645]
V. Conclusion (§§ 59–60). . . . . . . . . . . . . . . . . [646]
I. INTRODUCTION
1. I voted with the majority, except for the finding of no violation of Articles 8 and 10 in respect of the receipt of intercepted material from foreign intelligence services, namely of the bulk material intercepted by the United States National Security Agency (NSA) under the PRISM and Upstream programmes. In addition, I do not agree with the core of the majority's reasoning regarding the finding of a violation of Articles 8 and 10. The purpose of this opinion is to present the reasons for my disagreementFootnote 1.
II. DECONSTRUCTION OF THE COURT'S PRO AUTORITATE REGIME OF BULK INTERCEPTION
A. Vague language
2. I regret to state from the outset that the Court's language is inadmissibly vague, as will be demonstrated in this opinion. While sometimes this language reflects the Court's deliberate intention to accord leeway for a discretionary execution of this judgment by the respondent State, at other times it shows the judges' hesitation in the performance of their adjudicatory function. In so doing, they not only weaken the Court's authority, but water down the standard-setting value of this judgment.
3. Since the legal concepts of European human rights law are autonomous, in the sense that they are not strictly dependent on the meaning and scope of the corresponding domestic legal concepts, and in view of the novel character of the legal issues at stake in the present Grand Chamber case, the Court should have established, in black and white, the meaning of the fundamental legal concepts that it uses in the present judgmentFootnote 2, regardless of their meaning in the Regulation of Investigatory Powers Act 2000 (RIPA), the Interception of Communications Code of Practice (IC Code) or any “below the waterline” arrangements. For the sake of conceptual clarity, I will use the terms listed below with the following meanings:
(a) “intercept subject” to include natural persons and legal entities, including public services, private corporations, NGOs, and any civil society organisations, whose electronic communications may be intercepted, or have been interceptedFootnote 3;
(b) “intercepted material” or “bulk material” to encompass the content of the electronic communications and related communications data that have been collected by means of bulk interceptionFootnote 4;
(c) “related communications data” to include the data necessary for locating the source of an electronic communication and its destination, for determining the date, time, duration and type of communication, for identifying the communications equipment used, and for locating the terminal equipment and communications, data which comprise, inter alia, the name and address of the user, the telephone numbers of the caller and the person called, and the IP address for Internet servicesFootnote 5;
(d) “bulk interception” as targeted and non-targeted interception of electronic communications (and related communications data) circulating on bearers by means of strong selectors and selectors;
(e) “bearers” as carriers (primarily sub-marine fibre optic cables) of electronic communications;
(f) “strong selectors” as specific (personal) identifiers relating to an identified or identifiable target, permitting the acquisition of electronic communications to, from, or about the target;
(g) “selectors” as non-specific (non-personal) identifiers;
(h) a “to” or “from” communication as an electronic communication for which the sender or a recipient is a user of the tasked selector;
(i) an “about” communication as one in which the tasked selector is referenced within the acquired electronic communication, but the target is not necessarily a participant in the communication;
(j) “external communication” as communication sent or received outside the national territoryFootnote 6;
(k) “communication” as “anything comprising speech, music, sounds, visual images or data of any description and signals serving either for the imparting of anything between persons, between a person and a thing or between things, or for the actuation or control of any apparatus”Footnote 7;
(l) “below the waterline arrangements” as secret, internal rules and practices of the intercepting authority.
B. Biased methodology
4. The Court's methodological approach to this case is regrettable, for two main reasons. First, the Court was willing to decide a case of this importance “on the basis of limited information about the manner in which those [the Contracting States' bulk interception] regimes operate”Footnote 8. For example, the Government did not indicate the number or the degree of precision of the selectors they had used, the number of bearers intercepted or how exactly those bearers were selected, or the kind of intelligence reports that were being generated in respect of the related communications data, and yet the Court did not insist on obtaining that crucial information. The Investigatory Powers Tribunal (IPT) examined “below the waterline” arrangementsFootnote 9, the Interception of Communications Commissioner (IC Commissioner) had access to “closed material”Footnote 10 and even the Independent Reviewer of Terrorism legislation examined a “great deal of closed material”Footnote 11, but the Court did not, and could not. The Court was patently lacking in the detailed material necessary to make a full structural analysis and assessment of bulk interception in the United Kingdom. It is disappointing that the utmost sensitivity of the subject matter of this judgment, which was repeatedly stressed by the Court, only served the purpose of insisting on the need for the “effectiveness”Footnote 12 and “flexibility”Footnote 13 of the bulk interception system, but not that of collecting all the relevant evidence needed for a factually sound Court judgment. This self-imposed restriction on the Court's power to collect evidence demonstrates that the Strasbourg judges fail to consider the Court as a true judicial body, with the power to order the parties to provide it with unlimited and unconditional access to the evidence relevant to the subject matter of the case. As a consequence, the Court made some “educated guesses” about the likely degree of the interference with an individual's rights at different stages of the interception process. The problem of developing regulatory standards on the basis of such “educated guesses” is that it reflects the regulator's assumptions and biases. And they are clear in the present case. The Government's case boils down to a simple proposition which is “trust us”. The majority were ready to accept this proposition, with the risk of erring on the side of over-collecting intelligence. I am not. As the United States Presidential Review Board put it, “Americans must not make the mistake of trusting officials”Footnote 14. I would say the same for Europeans.
5. Second, the above-mentioned self-imposed evidential and adjudicatory limitation leads the Court to assume the inevitability of bulk interception and, even more so, that of a blanket, non-targeted, suspicionless interception regime, as pleaded by the respondent State and the third parties in both the present case and Centrum för rättvisa v. Sweden Footnote 15. With circular reasoning, the Government affirmed that bulk interception was incompatible with a reasonable suspicion requirement, because it was, by definition, untargeted, and it was untargeted because it did not require reasonable suspicionFootnote 16. The Court followed this lead and put it in axiomatic terms:
“the requirement of ‘reasonable suspicion’, which can be found in the Court's case-law on targeted interception in the context of criminal investigations is less germane in the bulk interception context, the purpose of which is in principle preventive, rather than for the investigation of a specific target and/or an identifiable criminal offence”Footnote 17.
It follows from this new paradigm that the Court has departed from settled case-law according to which it “does not consider that there is any ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other”Footnote 18. Both the German and the British bulk interception systems had already been assessed by the Court under the exact same criteria applicable to targeted interception: I refer to the generalised strategic surveillance under the G10 Act in Weber and Saravia v. Germany Footnote 19, as well as the indiscriminate collection of telecommunications sent or received outside the British Islands under the Interception of Communications Act 1985 in Liberty and Others v. the United Kingdom Footnote 20 and the capturing of vast amounts of internal communications under the Regulation of Investigatory Powers Act 2000 in Kennedy v. the United Kingdom Footnote 21. The Court has departed from the fundamentals of this case-law without good reason, as I will demonstrate below.
6. Moreover, the Court did not give proper weight to the fact that it had restated and effectively applied the previous case-law in three recent cases whose subject matter included, in one case tangentially and in the other two specifically, non-targeted interception of communications. I am referring to Roman Zakharov v. Russia Footnote 22, Szábo and Vissy v. Hungary Footnote 23 and Mustafa Sezgin Tanrıkulu v. Turkey Footnote 24. It is telling that Roman Zakharov v. Russia Footnote 25 also used the Weber and Saravia criteria when dealing with operational search activities, including interference with postal, telegraphic and other communications, which could affect “any person using these mobile telephone services”Footnote 26, for the purposes of national, military, economic or ecological securityFootnote 27. The Grand Chamber in that case went so far as to reproach the practice of “interception authorisations which do not mention a specific person or telephone number to be tapped but authorise interception of all telephone communications in the area where a criminal offence has been committed”Footnote 28. In Szábo and Vissy v. Hungary Footnote 29 the Court was even more explicit in censuring the “unlimited surveillance of a large number of citizens”Footnote 30, for the purposes of anti-terrorism and rescuing Hungarian citizens in distress abroadFootnote 31. While admitting the need for bulk interception to counter internal and external threats, the Court required an “individual suspicion”Footnote 32 for every surveillance measure in the light of the Weber and Saravia criteriaFootnote 33. In the subsequent case of Mustafa Sezgin Tanrıkulu v. Turkey Footnote 34, the Court reproached the domestic court's decision to allow the interception of the telephone and electronic communications of anyone in Turkey for the purpose of preventing criminal acts by terrorist organisations, after having recalled and confirmed the Weber and Saravia, Roman Zakharov and Szábo and Vissy case-law.
7. In addition to the claim that “both cases [Liberty and Others and Weber and Saravia] are now more than ten years old”, and that the surveillance activity considered in those cases was “much narrower”Footnote 35, the Court gave three reasons to abandon the previous case-lawFootnote 36, all factually unsound.
8. The first argument is that the “stated purpose” of bulk interception is “in many cases” to monitor the communications of persons outside the State's territorial jurisdiction “which could not be monitored by other forms of surveillance”Footnote 37. The Court did not provide, and could not provide, any evidence that “in many cases” bulk interception was limited, in terms of the “stated purpose”, still less of the real practice, to persons outside the State's territorial jurisdiction. On the contrary, all the available authoritative documents on bulk interception, which the Court chose to ignore, tell a different story. It is incomprehensible that, in view of the lack of evidence provided by the respondent Government, the Court turned a blind eye to the Council of Europe and European Union factual assessments publicly available in a plethora of authoritative documents on bulk interception published after the Snowden scandal erupted, such as for example the Parliamentary Assembly of the Council of Europe (PACE) Resolutions 1954 (2013) and 2045 (2015), and Recommendation 2067 (2015), the Committee of Ministers Declaration of 11 June 2013, and its Reply to the PACE Recommendation 2067 (2015), the European Commission against Racism's General Policy Recommendation no. 11, the Commissioner for Human Rights' Comments of 24 October 2013, his issue papers of 8 December 2014 and May 2015, and his Report on the shortcomings in the oversight of German intelligence and security services of 1 October 2015, the European Parliament Resolutions of 12 March 2014 and 29 October 2015, the European Data Protection Supervisor's opinion of 20 February 2014, and the Article 29 Working Party opinion 4/2014. It also neglected the United Nations General Assembly Resolution 68/167 of 18 December 2013, the United Nations Human Rights Committee (HRC) concluding observations on the fourth report of the USA of 26 March 2014 and the United Nations Special Rapporteur and the Inter-American Commission on Human Rights Special Rapporteur for freedom of expression joint declaration of 21 June 2013Footnote 38. Most astonishingly, the majority did not even consider the available international authoritative documents on the British bulk interception regime, such as the HRC Concluding observations on the seventh period report of the United Kingdom of 17 August 2015Footnote 39, and the Council of Europe Human Rights Commissioner's Memorandum on Surveillance and Oversight Mechanisms in the United Kingdom of May 2016Footnote 40.
9. All these documents, as well as the recent Szábo and Vissy Footnote 41 and Mustafa Sezgin Tanrıkulu v. Turkey Footnote 42 judgments of this Court and the relevant case-law of the Court of Justice of the European Union (CJEU)Footnote 43, contradict the alleged prevalence of monitoring of persons outside the State's territorial jurisdiction. On the contrary, these authorities confirm that bulk surveillance is mainly aimed at people within the territorial jurisdiction of the StateFootnote 44. The Government themselves admitted that the number of queries made against related communications data under section 8(4) of RIPA in respect of people who are known to be in the United Kingdom – thus as an internal surveillance tool – is up to several thousand per weekFootnote 45.
10. The second argument departing from the previous case-law is that the Council of Europe member States “appear to use”Footnote 46 bulk interception for purposes other than crime investigation. The Court's line of argument seems to be the following: since targeted interception is “for the most part”Footnote 47 employed in bulk interception for the purposes of crime detection and investigation, but bulk interception may also be used for the purposes of foreign intelligence gathering, where there may be neither a specific target nor an identifiable offence, bulk interception is not (and should not be) governed by the same standards of targeted surveillanceFootnote 48. This is yet another argument that is not proven by the Court, which chose to decide based on appearances, rather than facts.
11. In reality, non-targeted bulk interception is prohibited explicitly or implicitly in twenty-three European StatesFootnote 49. As PACEFootnote 50 and the Council of Europe Human Rights CommissionerFootnote 51 have forcefully demonstrated, indiscriminate mass communications surveillance has proven to be ineffective for the prevention of terrorism and therefore is not only dangerous for the protection of human rights but also a waste of resources. Thus if there is a consensus in Europe on non-targeted bulk interception, the consensus is that it should be prohibited, but this has been ignored by the Court. Only seven Council of Europe member States operate such regimesFootnote 52, and they do it mainly for the prevention, detection and investigation of such crimes as terrorism, espionage, cyber-attacks and, more vaguely, “serious crimes”Footnote 53, as shown by the above-mentioned authoritative Council of Europe and European Union documents, the Szábo and Vissy and Mustafa Sezgin Tanrıkulu judgments of this Court and the relevant case-law of the CJEU. Foreign intelligence gathering is only one among other purposes, and the Court does not have the minimum element of statistical or other evidence of how this purpose is pursued, whether based on monitoring of specific targets or otherwise. Even assuming, for the sake of the discussion, that foreign intelligence gathering is mainly pursued by means of non- targeted bulk interception, this does not necessarily imply that all bulk interception, including bulk interception with purposes related to crime detection and investigation, should be non-targeted. Otherwise, what happens is that bulk interception becomes a loophole to avoid the protections of an individual warrant in circumstances where such a warrant would be perfectly suited to acquiring the communications at issue. Having said that, nothing precludes the possibility that foreign intelligence gathering itself may be pursued by means of bulk interception based on a requirement of reasonable suspicion of the involvement of the targeted person or group of persons involved in activities harmful to national security, even if they are not criminal offencesFootnote 54.
12. The third argument deals precisely with this fine line between old-fashioned targeted interception and the new forms of bulk interception used to target specified individuals, and it is the weakest argument of the Court. In the case of interception by means of strong selectors, the Court argues that the “targeted individuals' devices are not monitored”,Footnote 55 and therefore bulk interception does not require the same guarantees as classical targeted interception. This is not convincing. The automatic collection and processing by means of strong selectors permitting the acquisition of electronic communications to, from or about the target across the bearers chosen by the intelligence services is a potentially much more intrusive form of interference with Article 8 rights than the mere monitoring of the targeted individuals' devicesFootnote 56. It is thus misleading to say that “only” (§ 346) those packets of the targeted individuals' communications will be intercepted, leaving the impression that bulk interception based on strong selectors is less intrusive than the old-fashioned monitoring of an individual's devices.
C. Defective regime of safeguards
13. From this factually unfounded reasoning, the Court drew two legal conclusions for “the approach to be followed in bulk interception cases”Footnote 57: domestic law does not have to identify the nature of the offences which may give rise to an interception order and the categories of people whose communications may be intercepted, and no requirement of a reasonable suspicion is needed to ground such interception orderFootnote 58. According to the Court's logic, since “the purpose of [bulk interception] is in principle preventive, rather than for the investigation of a specific target and/or an identifiable criminal offence”Footnote 59, none of the above two safeguards are required in domestic law, even when bulk interception targets a specified individual involved in an identifiable criminal offence. Thus, a general, suspicionless interception order suffices to trigger bulk interception, be it for the purposes of crime detection and investigation or others.
14. The Court's position leaves many questions unanswered. What are the admissible grounds for bulk interception? For example, is the investigation of “serious criminal offences”, without any further precision, an admissible ground? How serious should the crime investigated be? Is the investigation of the theft of a wallet and a mobile telephone an admissible ground?Footnote 60 Is the promotion of economic and industrial espionage for the sake of the economic well-being and national security of the intercepting State an admissible ground?Footnote 61 What are the admissible “circumstances” in which an individual's communications may be intercepted? To justify bulk interception of an individual's communications, what is the required degree of interest of the individual's communications for the purposes pursued by the bulk interception order? Is it the individual suspicion standard mentioned by Szábo and Vissy Footnote 62 or the reasonable suspicion criterion required by Roman Zakharov Footnote 63? How can the Court require that domestic law set out “with sufficient clarity”Footnote 64 the grounds upon which bulk interception may be authorised and the circumstances in which an individual´s communications may be intercepted when the Court itself is not sufficiently clear on what kind of “grounds” and “circumstances” it is referring to?
15. Since Article 8 applies to all stages of bulk interception, including the initial retention of communications and related communications dataFootnote 65, the Court has correctly established “end-to-end safeguards”Footnote 66. The problem is that the Court is unclear regarding the legal nature of the “end-to-end safeguards”. On the one hand, it has used imperative language (“should be made”Footnote 67, “should be subject”Footnote 68, “should be authorised”Footnote 69, “should be informed”Footnote 70, “must be justified”Footnote 71, and “should be scrupulously recorded”Footnote 72, “should also be subject”Footnote 73, “it is imperative that the remedy should”Footnote 74) and has called them “fundamental safeguards”Footnote 75 and even “minimum safeguards”Footnote 76. But on the other hand, it has diluted these safeguards in “a global assessment of the operation of the regime”Footnote 77, allowing for a trade-off among the safeguardsFootnote 78. It seems that at the end of the day each individual safeguard is not mandatory, and the prescriptive language of the Court does not really correspond to non-negotiable features of the domestic system. In some corners of Europe, zealous secret services will be strongly tempted to take advantage of the Court's very lax fashion of formulating legal standards and innocent people will pay the price sooner or later.
D. Preliminary conclusion
16. According to the Court, an independent authorityFootnote 79, i.e. one that is independent from the executive, is required at the outset to assess the purpose of the interception, the selection of the bearersFootnote 80 and the categories of selectorsFootnote 81, against the backdrop of the principles of necessity and proportionality. The choice of strong selectors linked to identifiable individuals is particularly problematic, since the selection and “use of every such strong selector”Footnote 82 does not require a prior independent authorisation. For the Court, internal authorisation suffices in this case, coupled with the guarantees that the request for a strong selector is justified and the internal process is “scrupulously” recordedFootnote 83.
17. Furthermore, the execution of the interception order, including its subsequent renewals, the use, storage, onward transmission and deletion of the obtained data, should be supervised by an authority independent from the executive, with detailed records being kept at each stage of the process to facilitate this supervisionFootnote 84.
18. In the end, the ex post facto review of the entire process should be performed by an authority independent from the executive, in a fair and adversarial procedure, with binding powers to order the cessation of unlawful interception and the destruction of unlawfully obtained or stored data, as well as obsolete, equivocal or disproportionate dataFootnote 85.
III. CONSTRUCTION OF A PRO PERSONA REGIME OF BULK INTERCEPTION
A. Bulk interception of communications
19. It appears to me that the above-mentioned regime does not amount to a sufficient set of guarantees of the Articles 8 and 10 rights. In my view, the time has come not to dispense with the fundamental guarantees of judicial authorisation, supervision and ex post facto review in the field of bulk interceptionFootnote 86. As a matter of principle, the end-to-end judicial oversight of bulk interception is warranted by the extremely intrusive nature of this process. I do not see why a State governed by the rule of law should not trust its serving judges, ultimately its more senior and experienced judges, to decide on such matters. Unless the Court believes that judicial-like bodies are more independent than ordinary courts … In my view, the independence of judicial-like bodies is not a given. In addition, if ordinary courts are competent to authorise, supervise and review the interception of communications in highly complex criminal proceedings, such as investigations into organised crime and terrorism, I do not understand why they should not be competent to perform the exact same function regarding the operation of a bulk interception process. Thus, neither the independence nor the competence of ordinary courts should be called into question for the purposes of building a Convention-compliant architecture of safeguards in a bulk interception regime. A State which believes its serving judiciary to be unfit to perform these functions has a serious problem with the rule of law.
20. To be sure, judicial intervention should not be a panaceaFootnote 87. It is obvious that judicial oversight of the entire process would be meaningless if the categories of offences and activities and intercept subjects being monitored were not set out in the domestic law with the necessary degree of clarity and precision. Consequently, judicial control must encompass the choice of the specific bearers and strong selectors. By specific I mean the individual bearers and strong selectors, not “sorts” or “categories” of bearers or selectors, which would be a blank cheque for the intercepting authority to pick up whatever it likes.
21. In the case of a double-lock system, whereby the judge considers warrants previously decided by a politician or an administrative official, judicial oversight must not be limited to the possibility of overruling the administrative decision when the judge deems that the politician or the administrative official acted unreasonably. This would not be truly judicial authorisation since the Convention-required necessity and proportionality tests are more demanding than the mere reasonableness test.
22. As I mentioned in Szábo and Vissy, the Convention does not allow for “data fishing”, or “exploratory” expeditions, neither in the form of non-targeted surveillance based on non-specific selectors, nor in the form of surveillance based on strong selectors aimed at communications about the targeted intercept subjectFootnote 88. Nor is it admissible to broaden the net of intercept subjects through the deployment of fuzzier search terms. I would recall the fundamental reason why I have reached this conclusion. Admitting non-targeted bulk interception involves a fundamental change in how we view crime prevention and investigation and intelligence gathering in Europe, from targeting a suspect who can be identified to treating everyone as a potential suspect, whose data must be stored, analysed and profiledFootnote 89. Of course the impact of such a change on the innocent could eventually be mitigated by a cohort of more or less flexible adjudicators and regulators and a plethora of more or less convenient laws and codes of practice, but a society built upon such foundations is more akin to a police state than to a democratic society. This would be the opposite of what the founding fathers wanted for Europe when they signed the Convention in 1950.
23. Thus any target of surveillance must always be identified or identifiable in advance based on reasonable suspicion. To leave no doubt, bulk interception should be admissible only on the basis of strong selectors aimed at the communications from and to the targeted intercept subject when there is a reasonable suspicion that he or she is involved in the legally defined categories of serious offences or activities which are harmful to national security without necessarily being criminalFootnote 90.
24. Judicial warranting should extend to the authorisation of surveillance of communications or related communications data, including privileged and confidential data, with the sole exception of urgent cases, when the competent judge is not immediately available, where authorisation may be given by a public prosecutor, subject to the competent judge's subsequent endorsement.
25. Domestic law should provide for a specific regime of protection for privileged professional communications of parliamentarians, medical doctors, lawyers and journalistsFootnote 91. Since indiscriminate and suspicionless bulk collection of communications would frustrate the protection of legally protected and confidential information, this can only be effectively guaranteed by means of judicial authorisation of interception of such communications when evidence is put forward that supports a reasonable suspicion of serious offences or conduct damaging to national security committed by these professionalsFootnote 92. In addition, any communications of these categories of professionals covered by their professional secrecy, if mistakenly intercepted, should be immediately destroyed. Domestic law should also provide for the absolute prohibition of any interception of communications covered by religious secrecy.
26. Judicial oversight should not stop at the start of the operation of the interception. Were the actual operation of the system of interception hidden from the judge's oversight, the initial intervention of a judge could be easily undermined and deprived of any real effect, rendering it a merely virtual, deceptive safeguard. On the contrary, the judge should accompany the entire process, with a regular and vigilant examination of the necessity and proportionality of the interception order, in view of the intercept data obtained. Unless he or she receives constant feedback from the intercepting authority, the authorising judge will not know how the authorisation is in fact being used. In case of non-compliance with the interception order, the judge should be able to order its immediate cessation and the destruction of the unlawfully obtained data. The same should apply in case of the lack of necessity to proceed with the operation, for example because the data obtained are of no interest for the purposes pursued by the interception order. Only a judge vested with the power to take such binding decisions can provide an effective guarantee of the lawfulness of the material that is kept. In sum, the judge should be empowered to conduct a regular review of the operation of the system, including of all records of interception and accompanying classified documentsFootnote 93, with a view to avoiding unnecessary and disproportionate interference with the rights under Articles 8 and 10.
27. Finally, ex post review of the use made of an interception order should also be triggered by notification to the targeted person. When nothing hinders the notification of the person whose communications have been intercepted, it would allow him or her to contest in a fair and adversarial judicial procedure the grounds for such interceptionFootnote 94. It is therefore highly speculative, to say the least, to pretend that a system which does not depend on notification of the intercept subject “may even offer better guarantees of a proper procedure than a system based on notification”Footnote 95. No one cares more for the interests of the intercept subject than the subject himself or herself.
28. Where, for some reason, such as the interests of national security, it is not possible to notify the person whose communications have been intercepted, there is realistically no way of the person learning of the surveillance measure taken in his or her regard. In this case, it is imperative to impose on the competent judge the burden of assessing, on his or her own initiative (ex proprio motu) or on the initiative of a third party (for example, a public prosecutor), the way in which the interception order was executed with a view to determining whether the data in question was lawfully collected and should be kept or destroyed; the intercept subject should then be represented by a privacy lawyer.
29. Last but not least, human and financial oversight resources and capabilities should match the scale of the operations being overseen, otherwise the entire system will be a mere façade covering the discretionary administrative process of the intercepting authorities.
B. Exchange of intercept data with foreign intelligence services
30. The Court has set a lower standard of protection for the transfer to foreign intelligence services of data obtained through bulk interception. First, the transferring State does not have an obligation to check whether the receiving State has a comparable degree of protection to its own. Furthermore, there is no need to require, prior to every transfer, an assurance that the receiving State, in handing the data, will put in place safeguards capable of preventing abuse and disproportionate interferenceFootnote 96. Thus the Court has not excluded the possibility of bulk transfer of data to a foreign intelligence service in a continuous process based on a single purpose. In view of this highly discretionary framework, it is not clear what the “independent control” required by the Court consists ofFootnote 97. What is the purpose of independent control if there is no need to assess the safeguards put in place by the receiving State (including to the effect that it will “guarantee the secure storage of the material and restrict its onward disclosure”Footnote 98) prior to every transfer? Is the independent control limited to cases where “it is clear that material requiring special confidentiality – such as confidential journalistic material – is being transferred”Footnote 99? To whom should this be clear, to the transferring intelligence service or to the judge? Is there any difference between independent control and independent authorisation? The vagueness of the Court's language seems to serve its intentional watering-down of the specific safeguards pertaining to the transfer itself.
31. I see no reason for this lowering of the Convention protection in case of the sharing of bulk data, and the Court does not provide one either. According to the consolidated Council of Europe and European Union standards, the sharing of personal data should be limited to third countries which afford a level of protection essentially equivalent to that guaranteed within the Council of Europe and the European Union respectivelyFootnote 100. The judicial oversight should here be as thorough as in any other case. This attentive judicial oversight is particularly warranted when a Council of Europe member State is transferring data to a non-member State, for the obvious reason that the future use made of that data by the non-member State is not under the Court's jurisdiction. Such judicial oversight should not be limited by the “third-party rule”, according to which it is prohibited for an intelligence authority which received data from a foreign intelligence service to share it with a third party without the consent of the originatorFootnote 101.
C. Bulk interception of related communications data
32. Finally, the Court has acknowledged the highly intrusive potential of bulk interception of related communications dataFootnote 102, but has failed to provide the same degree of protection in this caseFootnote 103. On the one hand it requires that “the aforementioned safeguards [be] in place”, referring to those provided for in paragraph 361 of the judgment, but on the other hand it admits that member States have the discretion to pick and choose which specific safeguards should be enshrined in the domestic law, since “legal provisions governing … treatment [of related communications data] may not necessarily have to be identical in every respect to those governing the treatment of content”Footnote 104. The Court's blurred message is so ambiguous that it provides no proper guidance to the States as to which of the “aforementioned safeguards” are mandatory, if any, for bulk interception of related communications data. Consequently, the Court's hesitant stance does not allay the risk of mapping of a person's entire social life that the Court itself has identified.
D. Preliminary conclusion
33. I do not agree that “States enjoy a wide margin of appreciation in deciding what type of interception regime is necessary, for these purposes [to protect national security and other essential national interests against serious external threats], [but] in operating such a system the margin of appreciation afforded to them must be narrower”Footnote 105. If the boundaries of State discretion are wide, even the most stringent policing of them does little to safeguard against abuse. The margin of appreciation must be the same, both for designing the system and for operating it, and this margin is a narrow one, in view of the deeply intrusive nature of the State surveillance powers in question, the inherently high risk of abuse of these powers and – not to be forgotten – the European consensus on the prohibition of non-targeted bulk interception. This risk is magnified by some security- obsessed governments with an unlimited appetite for data which now have the technological means to control worldwide digital communication.
34. In sum, domestic law must be sufficiently clear in its terms to give individuals and legal personsFootnote 106 an adequate indication of the mandatory conditions and multi-layered procedures according to which the authorities are empowered to resort to bulk interception; these conditions and procedures include the followingFootnote 107:
(a) The definition of the grounds that may justify the adoption of an interception order, such as: detection of activities posing a threat to national security or serious crime prevention, detection, or investigation, in which case the offences that may trigger the interception must correspond either to a list of specific serious offences or generally to offences punishable by four or more years' imprisonmentFootnote 108.
(b) A definition of the intercept subjects, in other words, the persons or institutions who are liable to have their communications intercepted, as follows:
(i) strict prohibition of data fishing or exploratory expeditions, to discover “unknown unknowns”, including any form of non-targeted surveillance based on non-specific selectors,
(ii) strict prohibition of use of strong selectors aimed at communications about the targeted intercept subject,
(iii) admissibility of strong selectors aimed at the communications from and to the targeted intercept subject when there is a reasonable suspicion that the intercept subject is involved in the above-mentioned offences or activities.
(c) A catalogue of the forms of electronic communications that can be intercepted, such as telephone, telex, fax, email, Google search, browsing the Internet, social media and cloud storage.
(d) The observance of the principle of necessity, which requires that:
(i) interference with the rights of the intercept subjects must adequately serve the purposes pursued and go no further than is necessary to achieve those aims;
(ii) interception must be justified only as a measure of last resort, that is, when no other means of obtaining evidence or information are available, because recourse to other less intrusive methods has proven unsuccessful or, exceptionally, if other less intrusive methods are deemed unlikely to succeed;
(iii) the interception must be tailored to avoid, as far as possible, targeting persons or institutions that are not responsible for the above-mentioned offences or activities; and
(iv) the interception must be immediately stopped when it no longer serves the purposes pursued.
(e) The observance of the principle of proportionality, which requires that:
(i) a fair balance must be struck between the competing rights of the intercept subjects and the purposes pursued, in accordance with the principle that the graver the above-mentioned offences or activities and their past or future consequences, the more intrusive and extensive the interception may be; and
(ii) in any event the interception must ensure that the essence (or minimum core) of the rights of the intercept subjects is respected, such as the right to intimate private life in the case of physical persons. Interception must cease as soon as it becomes apparent that it is encroaching upon the core of private life.
(f) A limit on the duration of the interception order, which can be extended one or more times after an assessment of the results of the operation, but in any event with a maximum time-limit imposed for the whole operation.
(g) End-to-end judicial oversight, which includes:
(i) authorisation of interception, including the specific bearers to be intercepted and strong selectors to be used;
(ii) regular control of the implementation of the interception order, at sufficiently short intervals, including extension of the duration of the interception order and transmission of the data obtained to third parties; and
(iii) ex post facto review of the interception process and the data intercepted.
(h) In cases of urgency, a special interception order may be made by a public prosecutor, but must be confirmed by a judge within a short period of time.
(i) The procedure to be followed for examining, using, storing and destroying the data obtained, with a detailed description of the scope of the judge's oversight during the implementation stage and after the interception has ended and the documentation of the key steps of data deletion in so far as this is necessary for the judge's oversight.
(j) The conditions to be fulfilled and the precautions to be taken when exchanging intercepted data with foreign intelligence services, as follows:
(i) an absolute prohibition from outsourcing surveillance operations circumventing the domestic rules;
(ii) an absolute prohibition for an intelligence authority which received data from a foreign intelligence service from sharing it with a third party without the consent of the originator, this rule not limiting the access of the domestic judge of the receiving State to the transferred data;
(iii) an absolute prohibition from exchanging data with foreign intelligence services which do not ensure a level of protection essentially equivalent to that guaranteed by the Convention;
(iv) an absolute prohibition of bulk transfer of data to, or receipt from, a foreign intelligence service in a continuous process based on a single purpose;
(v) judicial authorisation prior to every transfer/receipt of data in accordance with the exact same principles and rules of domestic bulk interception, including, among others, the observance of the principles of necessity and proportionality;
(vi) these rules apply without distinction between solicited and unsolicited data, “raw” (unevaluated) and evaluated data.
(k) The duty to notify the intercept subject when the interception is over, save where the interests of national security would be endangered by such disclosure, in which case the competent judge must be empowered to review on his or her own initiative (ex proprio motu) or on the initiative of a third party (for example, a public prosecutor) the entire process of interception in order to determine whether the data was obtained lawfully and whether it should be kept or destroyed, the intercept subject then being defended by a privacy lawyer.
(l) Special guarantees with regard to the secrecy of professional communications of privileged communicants such as parliamentarians, medical doctors, lawyers, journalists and priests.
(m) The guarantee that a criminal conviction may not be based solely or to a decisive extent on the evidence collected by means of bulk interception.
(n) These principles apply to surveillance conducted in the Contracting Party's own territory as well as to its surveillance performed extraterritorially, regardless of the purpose for the surveillance, the state of the data (stored or in transit), or the possession of the data (data held in the intercept subject's possession or in the possession of a service provider).
(o) The State's obligation to respect and fulfil individuals' rights is complemented by an obligation to protect individuals' rights from abuse by non-State actors, including corporate entities.
IV. CRITIQUE OF THE IMPUGNED UK BULK INTERCEPTION REGIME
A. Bulk interception of communications under the RIPA 2000
35. Considering the above, I have a principled objection, well beyond the Grand Chamber's tenuous challenge, to the United Kingdom's bulk interception regime, as it stood on 7 November 2017, which means before the full entry into force of the Investigatory Powers Act 2016 (IPA)Footnote 109.
36. The purpose of bulk interception in detecting and investigating serious crime as defined under section 81(2)b of RIPA is definitively not compatible with the concept of serious crime prevailing in international law, in so far as the domestic concept encompasses offences punishable by imprisonment for a term of less than four years. Furthermore, the purpose of safeguarding the economic well-being of the UK in so far as those interests are also relevant to the interests of national security is not sufficiently precise, allowing bulk interception to be used, for example, for economic and industrial espionage and “trade war” purposesFootnote 110.
37. The very general terms of the Secretary of State's section 8(4) certificates were also reproached, and correctly so, by the Intelligence and Security Committee of Parliament (ISC)Footnote 111.
38. The distinction between internal and external communications, as set out in section 20 RIPA, is fundamentally defective and does not sufficiently circumscribe the categories of people liable to have their communications intercepted. As concluded by the ISC, this distinction was confusing and lacked transparencyFootnote 112.
39. The Government's justification for this distinction was that “[w]hen acquiring intelligence on activities overseas, the Intelligence Services do not have the same ability to identify targets or threats that they possess within the UK”Footnote 113. The IPT reiterated the argument, stating that “it was harder to investigate terrorist and criminal threats from abroad”Footnote 114. This justification must be understood against the background of the 2014 Government's disclosures, which acknowledged that the requests for bulk material were made to a foreign intelligence service “otherwise than in accordance with an international mutual legal assistance agreement”Footnote 115. Thus the impugned bulk interception system was created to avoid the time-consuming and resource-intensive procedures and “harder” obligations stemming from the existing international law framework of mutual legal assistance, in other words, to bypass safeguards under the existing system of international mutual assistance treaties and to take advantage of its lack of regulation of new transnational surveillance technologies.
40. Furthermore, with an increasing amount of communication being treated as externalFootnote 116, and the exponential increase in bulk interception of more and more communications of individuals who are in the British IslandsFootnote 117, the external/internal communications distinction is simply not technically feasible to sustain, and is therefore meaningless. The territorial jurisdiction-based distinction between external and internal communications is inherently contradictory with the reality of today's flow of communication on the Internet, where a Facebook message exchanged within a group of friends in London is routed via California and is therefore “external” to the United KingdomFootnote 118. As the Law Society reminded the Court, confidential communications between lawyers and clients, even when both were in the United Kingdom, could be intercepted under the section 8(4) regimeFootnote 119. In practice, the Government's expansive concept of external communications also includes cloud storage, Google searches, browsing and social media activitiesFootnote 120. For many types of communication, it may not even be possible to distinguish between external and internal communications since the location of the intended recipient will not always be apparent from the related communications data. The factual analysis of whether a particular communication is external or internal may in individual cases only be possible to carry out with the benefit of hindsightFootnote 121. Today's closer interconnectedness of living and communication conditions across borders is certainly not an argument for treating external and internal communications differently, but rather the opposite. This, of course, should not be understood as an invitation to lower the level of protection of internal communications, but to increase the level of protection of external communications.
41. In this regard, it is not evident that a communication between a person in Strasbourg and a person in London should be entitled to more limited protection under the Convention than a communication between two persons in London. There does not, therefore, seem to be any objective justification for treating such persons differently, other than the assumption that threats come more often than not from abroad, and that foreigners are less deserving of trust than nationals, because they pose a more serious risk to national security and public safety than nationals, thereby justifying the need for monitoring communications sent or received outside the British IslandsFootnote 122. This is also reflected in the way foreigners are treated in court when they want to uphold their privacy rights. The IPT does not accept complaints from applicants outside the national territoryFootnote 123. This foreigner-unfriendly Weltanschauung could not be more alien to the spirit and letter of the ConventionFootnote 124. The Convention places at its centre the individual, not the citizen of a State, which means that Convention rights as rights of the individual ought to provide protection whenever a Contracting Party acts and thus potentially creates a need for protection – irrespective of where, towards whom and in what manner it does so. Furthermore, the Convention rights should permeate the participation of Council of Europe member States in the international community, in so far as “the Council of Europe legal order can no longer be confused with the traditional international accord of juxtaposed egoisms. Sovereignty is no longer an absolute given, as in Westphalian times, but an integral part of a human rights-serving community”Footnote 125.
42. At the end of the day, the RIPA distinction was unfit for purpose in the developing Internet age and only served the political aim of legitimising the system in the eyes of the British public with the illusion that persons within the United Kingdom's territorial jurisdiction would be spared the governmental “Big Brother”. In fact, they were not. The Secretary of State could, when he or she found it necessary, determine the examination of material selected according to factors referable to an individual who was in the British IslandsFootnote 126 and modify a certificate to authorise the selection of communications of that individualFootnote 127. In addition, the by-catch of internal communications not identified in the Secretary of State's warrant was allowed whenever necessary to obtain the external communications that were the subject of the warrantFootnote 128, and according to the Government themselves, this “is in practice inevitable”Footnote 129. That having been said, it should be noted that, in relation to bulk interception of related communications data, there was not even an external communications restriction.
43. Even if bulk interception were meant to be a foreign intelligence gathering powerFootnote 130, rather than a tool for the prevention, detection and investigation of crimeFootnote 131, this did not justify the lack of regulation or the breadth of the powers of the intercepting authorities. In any event, as a result of the development of digital communications, the external communications safeguard no longer acts as a meaningful constraintFootnote 132, if it ever did. And my point is that it never did, for the following reasons.
44. The Secretary of State provided no independent authorisation for a section 8(4) warrantFootnote 133, his interception warrant being a blank cheque, which did not name or describe the intercept subject, did not impose an express limit on the number of communications which could be intercepted, and did not specify bearers or selectors. No specific provision governed the case where there was a request for the communications of a journalist, or a medical doctor, or a priest, or where such collateral intrusion was likely, other than the innocuous paragraphs 4.28 to 4.31 of the IC CodeFootnote 134. The choice of bearers and the application of selectors, including strong selectors, to external communications was dependent on the final say of the intercepting authorityFootnote 135. In plain words, the intelligence community was in full control of the authorisation procedure, keeping the Secretary of State at bay from essential information, with the consequence that he or she could not deliver a proper proportionality and necessity analysis, but just whitewashed politically the operation of the systemFootnote 136.
45. Moreover, the code of practice issued by the Secretary of State was not binding, allowing departure from it for good reason. Worse still, the daily work of the analysts was governed by “below-the-waterline arrangements”, which were not available to the public, not even in a cursory fashion or redacted mannerFootnote 137. This administrative leeway of the intercepting authority defeated the purpose of the legality principle, according to which the rules governing bulk interception must have a basis in domestic law and that this law must be accessible and foreseeable as to its effects.
46. The regulatory weakness of the system was further aggravated by the status of the Interception of Communications Commissioner (IC Commissioner), who was not an independent authority and provided for no effective oversight of the implementation of the interception warrantFootnote 138. As the 2015 ISC Report put it, “while the two Commissioners are former judges, in their roles as Commissioners they are operating outside the official judicial framework”, concluding that “a number of these responsibilities are currently being carried out on a non-statutory basis. This is unsatisfactory and inappropriate”Footnote 139. This is not the worst aspect of the IC Commissioner's legal status. As a matter of law, the Prime Minister appointed the IC Commissioner, who reported to him or her and was dependent on the staff provided by the Secretary of StateFootnote 140. In addition, it was a part-time job and the IC Commissioner could be dismissed by the Prime Minister at any momentFootnote 141. This status was evidently not compatible with the independence required for effective supervision of the operation of the section 8(4) regime. In short, the Commissioners were not “institutionally, operationally, and financially independent from the institutions they [were] mandated to oversee”, as required by the Tshwane principlesFootnote 142.
47. Even assuming, for the sake of the discussion, that the Commissioner's oversight in the United Kingdom was independent, it was not effective, for the simple reason that, when confronted with a serious error, the Commissioner would only have the power to make a report to the Prime Minister to draw this error to his or her attention and, if so, to decide to what extent it was possible to publish that errorFootnote 143. For example, he could neither refer the case to the IPT, nor notify the victim of excessive interception. In fact, the Commissioner even failed to identify that the applicants Amnesty International and the South African Legal Resources Centre had been subjected to unlawful surveillance!
48. The duration of interception and retention periods had no specific maximum time-limit in the law, and the practice did not fill this gapFootnote 144. Section 8(4) warrants could be renewed ad aeternum Footnote 145. Moreover, retention periods differed between different intercepting authoritiesFootnote 146 and the “normal” maximum time-limit for retention under paragraph 7.9 of the IC Code (i.e. two years) could be dispensed with by a senior official of the intercepting authority itself. This is a telling sign of who ran the show in the British bulk interception systemFootnote 147.
49. There was no notification obligation at the end of the interception processFootnote 148. Absent of such notification, the right of access to a court was largely futile. That was the case in the United KingdomFootnote 149. The IPT acted only upon a complaint by a person who believed that he or she had been subjected to secret surveillance, which meant that the IPT was a purely theoretical guarantee for all those intercept subjects who had no idea that their communications had been interceptedFootnote 150. The insufficiency of the IPT oversight was compounded by the fact that it had no power to make a declaration of incompatibility if it found primary legislation to be incompatible with the ECHR, as it was not a “court” for the purposes of section 4 of the Human Rights Act 1998; that its rulings were not subject to appeals; and, strangely enough, that the Secretary of State had the power to adopt the IPT's procedural rules, which in practice meant that the supervised entity had the power to determine the rules that governed the supervisory bodyFootnote 151.
B. Exchange of intercept data with foreign intelligence services
50. There is no express statutory framework analogous to RIPA governing the authority upon which the British Government can use intercept data from a foreign country. Only in January 2016 did Chapter 12 of the IC Code set the framework for such exchangeFootnote 152. Under paragraph 12.5 of the IC Code, and its accompanying footnote, requests for intercepted communications and related communications data from a foreign intelligence service could be made for “material to, from and about specific selectors”Footnote 153. The NSA abandoned the “about” collection in April 2017, because it could not be conducted lawfully due to its inadmissible massive overreachFootnote 154. Yet the Court's surprising willingness to accept the “collect it all” policy of the respondent GovernmentFootnote 155 goes beyond even the NSA playbook, admitting not only “about” collection requests, but even requests for material other than in relation to specific selectorsFootnote 156.
51. According to the Court, the transfer of bulk material to foreign intelligence partners should be subject to “independent control”Footnote 157, but the receipt of bulk material collected by foreign intelligence authorities should not beFootnote 158. If the safeguards are inadequate in relation to direct surveillance by the United Kingdom's intercepting authorities, they ought to be considered as inadequate also for indirect surveillance by them, resulting from intelligence sharing of third-party intercept material; even more so where such material is collected by a third party not bound by the Convention. When the danger of material collected and stored in a non-Convention compliant manner is higher, and therefore independent oversight is most needed, the Court has renounced this safeguard, without any plausible justificationFootnote 159. In this regard, the oversight of the IC Commissioner and the IPT, invoked by Government and the majority in the Grand Chamber, was practically inoperative, in controlling intelligence sharing from third-party intercept material no less than in overseeing domestic surveillance, since the IPT's intervention depended on a complaint and the IC Commissioner had no power other than to make a report to the Prime Minister to draw any serious error to his or her attention.
52. The absurd consequences of the majority's reasoning are even more patent in the following example: if one Londoner sends a message on Twitter to another Londoner, and that communication is transmitted via a server in the United States, the Court accepts that the interception by the Government's Communications Headquarters (GCHQ) of that message and the related communications data, when it leaves the United Kingdom on a cable bound for the United States, deserves the guarantee of independent authorisation. But if the NSA intercepts that same message at the other end of the same cable and then gives a copy to the GCHQ, or the communications data relating to it, the guarantee of independent authorisation does not apply. It is entirely arbitrary for there to be different legal protections for the same data based only on the accidental location of who carried out the initial interception. The absence of a statutory scheme of safeguards for the use of intercept data from a foreign country that is equally protective as that applying to intercept data collected in the home country, means that the United Kingdom law is insufficient to protect against arbitrariness and abuseFootnote 160.
53. Furthermore, under paragraph 12.6 of the IC Code, sections 15 and 16 of RIPA did not apply to all material received from foreign intelligence services that could be the product of bulk interception, but only to requested intercept material or “where the material identifie[d] itself as the product of intercept”, which left the triggering of the domestic guarantees of the receiving State (the United Kingdom) dependent on a decision of the foreign intelligence services.
54. The portrayal of the exchange of bulk material with other parties would be incomplete without mentioning another noteworthy feature. It should be added that paragraph 7.3 of the IC Code allowed for disclosure of intercepted material to other parties in accordance with the mere convenience of the service, an astonishingly simplistic criterion. The “need-to-know principle”Footnote 161 is the logical opposite of the necessity and proportionality tests: the principle that only so much of the intercept material can be disclosed as the recipient needs is the antithesis of those tests. The use of this disclosing power is not subject to an objective statutory threshold, but merely guided, and possibly misguided, by the purpose pursued. Thus, purely opportunistic considerations prevailed over the assessment of the necessity and proportionality of the additional interference with the intercept subject's rights constituted by the disclosure of the intercepted material to other parties. In simple words, the individual's communication is treated as a possession of the State, a commodity that the State can share with other parties at its discretion in order “to see if the haystack contains a needle”Footnote 162.
C. Bulk interception of related communications data
55. Lastly, section 16(2) of RIPA did not apply to bulk interception of related communications data, which meant that any analyst could use a strong selector referable to an individual known to be in the British Islands without any prior certification by the Secretary of State and, worse still, the intercepted data could be stored for “several months”, if and as long as necessary to discover “unknown unknows”Footnote 163. In practical terms, the interception and treatment of related communications data was limited only by the storage capacity of the intercepting services. In fact, RIPA does not really enshrine a foreign intelligence gathering power, because technological development has transformed it into a domestic surveillance power, and that is why the Government now pretend that the British Islands safeguard in section 16 of RIPA is not “necessary” for Convention compatibilityFootnote 164.
56. The Government's feasibility argumentFootnote 165 does not convince me either. It is perfectly feasible for a judge to assess, in due course, the necessity and the proportionality of a request for authorisation to target the individual's related communications data in every case, without any serious risk of undermining its useFootnote 166. If this authorisation process can be established for the targeting of journalists and other professionals whose related communications data are legally privileged, as the Court acceptsFootnote 167, why cannot it be set for the targeting of the related communications data of the common mortal? Such approval systems operating in scale are perfectly possible. The point is that large-scale interferences with privacy require a large-scale system of safeguards.
57. Despite their degree of intrusiveness, both within and outside the British Islands, the Court's tolerance with these practices is incomprehensible, bearing in mind that section 16(2) is considered, by the Court itself, to be “the principal statutory safeguard circumscribing the process of selecting intercept material for examination”Footnote 168.
D. Preliminary conclusion
58. In sum, the fact that the scope of the surveillance activity considered in Weber and Saravia (2006) and Liberty and Others (2008) was much narrower than it is today should not have led the Court to be less demanding as to the requisite level of protection of privacy rights at the present time. The exponential increase of surveillance activity in the last decade and the public outcry that it has unleashed warrants stricter oversight of the intelligence agencies' activities, for the sake of preserving democracy and defending the rule of law. Not the opposite. When the risk of State abuse increases, the Convention safeguards and corresponding domestic law guarantees should increase too, not decreaseFootnote 169. In other words, the Court's standards today should be more exacting than those of 2006 or 2008. This is exactly the opposite of what this judgment has delivered. In the present judgment the Court has succumbed to the fait accompli of general bulk interception, dangerously accepting that if it is useful it should be permissible. Usefulness is not the same thing as necessity and proportionality in a democratic society. As Justice Brandeis put it in Olmstead v. United States Footnote 170, “[i]t is also immaterial that the [telephone-tapping] intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent”.
V. CONCLUSION
59. This judgment fundamentally alters the existing balance in Europe between the right to respect for private life and public security interests, in that it admits non-targeted surveillance of the content of electronic communications and related communications data, and even worse, the exchange of data with third countries which do not have comparable protection to that of the Council of Europe States. This conclusion is all the more justified in view of the CJEU's peremptory rejection of access on a generalised basis to the content of electronic communicationsFootnote 171, its manifest reluctance regarding general and indiscriminate retention of traffic and location dataFootnote 172 and its limitation of exchanges of data with foreign intelligence services which do not ensure a level of protection essentially equivalent to that guaranteed by the Charter of Fundamental RightsFootnote 173. On all these three counts, the Strasbourg Court lags behind the Luxembourg Court, which remains the lighthouse for privacy rights in Europe.
60. For good or ill, and I believe for ill more than for good, with the present judgment the Strasbourg Court has just opened the gates for an electronic “Big Brother” in Europe. If this is the new normal that my learned colleagues in the majority want for Europe, I cannot join them, and this I say with a disenchanted heart, with the same consternation as that exuding from Gregorio Allegri's Miserere mei, Deus.
1. We are in agreement with the present judgment, except for the assessment of the complaint about the receipt by the respondent State's authorities of solicited intercept material from foreign intelligence services, under Articles 8 and 10 of the Convention (see operative points 3 and 5 of the judgment).
2. In the present judgment – as also in today's judgment in Centrum för rättvisa v. Sweden (no. 35252/08) – for bulk interception regimes the Grand Chamber has established a system of effective “end-to-end” safeguards, with three main pillars or cornerstones, in order to minimise the risk of such power being abused. These fundamental pillars are: (1) the authorisation of bulk interception at the outset, when the object and scope of the operation are being defined, by a body independent of the executive; (2) prior internal authorisation when strong selectors linked to identifiable individuals are employed; and (3) the supervision of the operation by an independent authority together with effective ex post facto review by a body independent of the executive (see paragraphs 350–359 of the judgment).
3. The same “end-to-end” safeguards established for a bulk interception regime should also apply to a regime where the authorities do not themselves intercept cross-border communications and related communications data, but rather ask foreign intelligence services to intercept such data or to convey already intercepted data. However, while upon receipt of the intercept material, the safeguards for its examination, use and storage, its onward transmission, and its erasure and destruction, are equally applicable (see paragraph 498 of the judgment), the first pillar, that is the prior independent authorisation, completely disappears in the majority's view. Their reasoning in that regard is not convincing for us. Why should a distinction be made according to the way the authorities have come into possession of the intercepted data, whether they intercepted the data themselves or had them intercepted by a foreign authority? Therefore, to our mind, also as far as the first pillar is concerned, the same safeguards as those established for bulk interception should apply.
4. We can fully subscribe to the Court's assessment in paragraphs 496 and 497 of the judgment, in particular that an interference with Article 8 already lies in the initial request to the foreign authorities, and that the protection afforded by the Convention would be rendered nugatory if States could circumvent their Convention obligations by requesting such data from non-Contracting States. Member States must, therefore, have clear and detailed rules which provide effective guarantees against the use of their power to circumvent domestic law and/or their obligations under the Convention.
5. Where we respectfully depart from the majority is on the question of what “effective guarantees” consist of.
6. The majority first refer to the fact that the requests were either based on warrants already authorised by the Secretary of State or explicitly approved by him or her (see paragraph 505 of the judgment). We would argue, however, that the Secretary of State is not independent of the executive and in this respect the regime governing the receipt of intelligence from foreign intelligence services is beset by the same deficiency as the bulk interception regime (see paragraph 377 of the judgment).
7. Secondly, the majority seem to assume that a national law which provides that there should be no circumvention is of itself an effective safeguard (see paragraph 506 of the judgment). We respectfully disagree. As already pointed out, for example, in the separate opinion of Judge Ranzoni in Breyer v. Germany (no. 50001/12, 30 January 2020), domestic law only provides for the legal basis determining the lawfulness of the interference: it does not, in addition and in itself, constitute an effective safeguard to protect the individual from the application of national law by domestic authorities in an arbitrary manner and from abuse of legal powers. Such protection must go beyond legal rules, in particular when those rules and legal powers are couched in broad terms.
8. In other words, a legal rule which prohibits circumvention or other misuse cannot at the same time be a safeguard for that not to happen. An effective safeguard supposes the availability of a mechanism capable of ensuring the correct application of that very rule. However, a safeguard of that kind is lacking with respect to requests to have data intercepted and conveyed by foreign intelligence services. In our view, as in the bulk interception regime, the first pillar within the “end-to-end” safeguards should similarly apply. Consequently, any such request should be subject to prior authorisation by an independent body capable of assessing whether it is both necessary and proportionate to the aim pursued (see paragraphs 350 and 351 of the judgment), and of ensuring that this power is not used to circumvent domestic law and/or the State's obligations under the Convention.
9. For these reasons we have voted against the finding of no violation of Article 8 of the Convention in respect of the receipt of intelligence from foreign intelligence services.
10. Since the majority conclude that the intelligence sharing regime does not violate Article 10 of the Convention, on the basis of the same reasons that led them to conclude that there has been no violation of Article 8 (see paragraph 516 of the judgment), we are equally in disagreement with their finding under Article 10.
