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Published online by Cambridge University Press: 07 February 2022
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). 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). While CFR is “very much the companion case to BBW,” 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. 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.
1 The judgment followed three applications that were combined: Big Brother Watch and Others v. UK, App. No. 58170/13, Bureau of Investigative Journalism & Alice Ross v. UK, App. No. 62322/14, and 10 Human Rights Organizations and Others v. UK, App. No. 24960/15. The Chamber decision was issued on September 13, 2018, the referral to the Grand Chamber was made on February 4, 2019, and as noted above the Grand Chamber made its decision on May 25, 2021 [hereinafter the Chamber's decision will be referred to as BBW, 2018; whereas the Grand Chamber's decision will be referred to as BBW, 2021].
2 App. No. 35252/08 (May 25, 2021) (challenging the Swedish Signals Intelligence Act. For further reading on the Chamber decision in that case see Asaf Lubin, Legitimizing Foreign Mass Surveillance in the European Court of Human Rights, Just Security (Aug. 2, 2018), https://www.justsecurity.org/59923/legitimizing-foreign-mass-surveillance-european-court-human-rights/.
3 Marko Milanovic, The Grand Normalization of Mass Surveillance: ECtHR Grand Chamber Judgments in Big Brother Watch and Centrum för rättvisa, EJIL: Talk! (May 26, 2021), https://www.ejiltalk.org/the-grand-normalization-of-mass-surveillance-ecthr-grand-chamber-judgments-in-big-brother-watch-and-centrum-for-rattvisa/.
4 BBW 2021, ¶¶ 323, 345.
5 Id. ¶ 350.
6 For a discussion of the TEMPORA program see BBW, Id., ¶¶ 15–19; The ECtHR notes that each bulk interception program may be different, but nonetheless identifies four primary stages in the interception process: “(a) the interception and initial retention of communications and related communications data (that is, the traffic data belonging to the intercepted communications); (b) the application of specific selectors to the retained communications/related communications data; (c) the examination of selected communications/related communications data by analysts; and (d) the subsequent retention of data and use of the “final product”, including the sharing of data with third parties.” See BBW 2021, ¶ 325.
7 For a discussion of both the PRISM and UPSTREAM programs, see BBW 2021, ¶¶ 22–25.
8 For a discussion of privacy intrusions associated with bulk collection of metadata and the rejection of the U.K. Government's arguments to the contrary, see BBW 2021, ¶ 342.
9 BBW 2018, ¶ 314.)
10 Id. ¶¶ 314–319.
11 For a broader analysis of ECtHR case law in this area see Eliza Watt, State Sponsored Cyber Surveillance: The Right to Privacy of Communications and international Law (2021).
12 Monika Zalnieriute, Procedural Fetishism and Mass Surveillance under the ECHR, Verfassungsblog (June 2, 2021), https://verfassungsblog.de/big-b-v-uk/.
13 Asaf Lubin, “We Only Spy on Foreigners”: The Myth of a Universal Right to Privacy and the Practice of Foreign Mass Surveillance, Chi. J. Int'l L. 18, 502, 543 (2018).
14 Weber v. Germany, App. No. 54934/00, ¶ 95 (June 29, 2006).
15 BBW 2021, ¶ 360.
16 Id. ¶ 361.
17 Id. ¶¶ 425.
18 Id. ¶¶ 518–519.
19 Id. ¶¶ 456–458; 524–525.
20 See generally, Marko Milanovic, Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, 56 Harv. Int'l L. J. 81 (2015)
21 See generally, Marko Milanovic, Intelligence Sharing in Multinational Military Operations and Complicity under International Law, 98 Int'l. L. Stud. 1269 (2021).
22 BBW 2021, supra note 1, ¶ 272.
23 Cf. Milanovic, supra note 3.
24 BBW 2021, supra note 1, ¶ 362.
25 Id., Joint Partly Concurring Opinion of Judges Lemmens, Vehabović, and Bošnjak, ¶ 3 (noting that the same “end-to-end safeguards” should apply to intelligence sharing regimes).
26 Id. ¶¶ 500–514.
27 Katelyn Burgess & Towhidul Islam, Unpacking Big Brother Watch v. UK, IAPP (Sept. 24, 2018), https://iapp.org/news/a/unpacking-big-brother-watch-v-uk/.
28 Massimo Frigo, Big Brother Watch v. UK: A Landmark Judgment Missing the Mark, ICJ (June 4, 2021), https://www.icj.org/big-brother-watch-v-uk-a-landmark-judgment-missing-the-mark
29 Zalnieriute, supra note 12.
30 BBW 2021, Partly Concurring and Partly Dissenting Opinion of Judge Pinto de Albuquerque, ¶ 2.
