Perhaps even more significantly, the affected individuals will only be able to contemplate a challenge if they know the state has disapplied the rules in their case.
The difficulty here is that the disapplication of the rules may itself result in a situation where individuals are kept in the dark about what is happening to their data.
Third, the UK has the Regulation of Investigatory Powers Act 2000 (RIPA). This fiendishly complex enactment is essentially intended to set out the circumstances in which secret surveillance activities undertaken by the state must be treated as lawful. Thus, for example, it sets out the circumstances in which individuals may lawfully be subject to surveillance (like using surveillance devices or covert human intelligence sources). It is clear that RIPA was enacted above all in order to ensure that the state was not using the veil of secrecy to conduct surveillance activities which unjustly interfered with the privacy rights of citizens.
However, a fundamental difficulty with RIPA, as with the Data Protection Act, is that it is difficult to detect when abuses are taking place. The secret nature of the surveillance being undertaken means that the subjects of the surveillance are themselves not in a position to hold the relevant authorities to account.
Standing back from the detail, two things become clear. First, as a matter of domestic law in the UK, any surveillance system deployed by the state must operate in a proportionate manner. It is hard to see how any surveillance system that enabled the state indiscriminately to capture data relating to millions of law-abiding citizens could ever satisfy the requirements of Article 8. Second, it is a fundamental precondition to the exercise of legal rights that individuals know whether their rights have been infringed. Keeping the public in a state of ignorance about the very existence of super-surveillance systems is constitutionally offensive.
Even if there are good reasons why individual operations must remain secret in the national interest, there surely can be no justification for keeping people in the dark about dramatic expansions in the surveillance state. If super-surveillance systems are as all-encompassing and indiscriminate as the revelations about PRISM tend to suggest, then all the more reason why these new modes of state watchfulness should be subject to robust scrutiny by both the public and the courts.
Of course, we could simply sit back and accept the assurances given to us by our political leaders that the state can be relied upon to regulate itself, that it will scrupulously turn its attentions only to those who clearly seek to threaten our comfortable existence. However, such a trusting, laissez-faire attitude is inherently naive. Our liberty as citizens depends very substantially on our ability to safeguard ourselves against arbitrary interference and excessive control by the state. If we abnegate our own responsibility to watch over the state’s burgeoning surveillance activities, the price we will pay is an inevitable loss of personal liberty in the face of an increasingly data-bloated and overweening state.