Case of Big Brother Watch and Others v. the United Kingdom

As Edward Snowden revealed the existence of surveillance and intelligence sharing programmes, operation ‘‘TEMPORA’’ came to light. This operation allowed the Government Communications Headquarters (hereinafter: GCHQ, being one of the United Kingdom intelligence services) to tap into and store huge volumes of data drawn from bearers. While the existence of this program was neither confirmed nor denied by the GCHQ, the March 2015 Report of the Intelligence and Security Committee of Parliament revealed that two major processing systems for the bulk interception of communications were (indeed) being operated. As this program intercepted massive amounts of data, several applicants complained about the scope and magnitude of the electronic surveillance programme.

Several human rights organizations and journalists raised the alarm after they suspected that, due to the nature of their activities, electronic communications had been either intercepted or obtained by the United Kingdom intelligence services. After an unsatisfactory ruling at the Court, three cases were combined and another complaint was filed with the Grand Chamber of the Court (hereinafter: the Court). This leads us to the latest judgment of the Court in the case of Big Brother Watch and Others v. the United Kingdom.[1] On May 25th, 2021, the Court determines whether the former surveillance regime violates the right to respect for private and family life as set out in article 8 ECHR. The Court has assessed the possible violation of Article 8 ECHR on the basis of the following questions: (1) is there a violation with regard to the bulk interception of communication; (2) is there a violation in the exchange of intercept data with foreign intelligence services; and (3) is there a violation in the regime for acquisition of communications data from communications service providers. In this regard, the Court examines the bulk interception regime of communications as provided for in Section 8(4) of the Regulation of Investigatory Powers Act 2000 (RIPA).[2]

When dealing with intelligence agencies intercepting data, there is inevitably a need for a certain level of secrecy. Thus, it is not possible to use the usual foreseeability criterion regarding the use of sufficient guarantees, which can be traced back to the case of Weber and Saravia v. Germany.[3] The applicants are of the opinion that these criteria are no longer sufficient. The Court agrees and notes that — given the changing nature of modern communication technologies — there are a number of additional safeguards for the bulk interception of data. First, the process must be subject to ‘‘end-to-end’’ safeguards’’. This means that, at the domestic level, an assessment must be made at each stage of the process regarding the necessity and proportionality of the measures taken.[4] Second, when determining the scope and object of the operation, the operation should be subject to supervision and independent ex post facto review.

In the present case, the Court concludes that the bulk interception regime as set out in the RIPA has shortcomings. These shortcomings arise from the lack of independent authorization for the bulk interception warrant, the failure to include appropriate search criteria (selectors) in the application for a warrant and lastly the failure to authorize search criteria (selectors) associated with individuals.  Although the Interception of Communications Commissioner provided independent and effective oversight of the operation and the Investigatory Powers Tribunal provided a robust remedy to anyone who suspected that their communications had been intercepted by intelligence agencies, these safeguards did not justify the restriction of Article 8 ECHR. Given the shortcomings of the program, the Court finds that Article 8(4) RIPA fails to meet the ”quality of law” requirement, meaning that the Government of the United Kingdom interfered further than necessary in a democratic society. This leads to the conclusion that there is a violation with regard to the bulk interception of communication. However, Article 8 ECHR is not violated in the exchange of intercept data with foreign intelligence services. In this regard, the rules of the Interception of Communications Code of Practice are sufficiently clear and detailed. On the other hand, a violation is found when acquiring data from communication service providers, as Chapter II of the RIPA is not ‘provided by law’. While a violation of article 8 ECHR has not been found in every aspect, the case of Big Brother Watch and Others v. the United Kingdom plays an important role for the specification of rules regarding the legitimate bulk interception of data.

[1] Big Brother Watch and others v. the United Kingdom App no 58170/13, 62322/14 and 24960/15 (ECHR 2021).

[2] The RIPA governed the process by which certain public authorities could request communications data from communication service providers

[3] Weber and Saravia v. Germany App no 54934/00 (ECHR 2007).

[4] This should minimize the risk of the bulk interception power being abused