Mind the Accountability Gap: Oversight of Bulk Collection Practices in the UK and the Netherlands in the Post Snowden Era

How feasible is it that controversial surveillance practices like bulk equipment interference or bulk interception to be implemented in a democratic system based on the rule of law, checks and balances and protection of fundamental rights? A potential answer is that strong intelligence oversight practices and good regulation can help safeguard fundamental human rights. Recently in Europe we witnessed a proliferation of intelligence laws with a bulk collection dimension. The expansion of governmental surveillance powers at European level is also reflected by the stream of landmark judgments issued by the European Court of Human Rights such as Centrum För Rättvisa v. Sweden (June 2018) and Big Brother Watch and Others v. the United Kingdom (September 2018) which clearly established that the exercise of bulk interception by governments is not unlawful per se. Two European states which have reformed their surveillance legislation extensively in recent years are the United Kingdom and the Netherlands. The present piece of research analyzes comparatively their oversight systems by focusing on the bulk collection dimension. In the UK, the most significant development in recent years regarding the surveillance powers regime was the implementation of the Investigatory Powers Act 2016. This piece of legislation adopted in November 2016 ratifies and even extends bulk collection powers, providing a new framework to govern their utilization and oversight. A positive development brought by the IPA was the introduction of a series of oversight and accountability measures in order to improve the existing accountability regime. Among these innovations is the introduction of a double-lock system which refers to the fact that the most sensitive and intrusive surveillance warrants authorized by a politician such as the Home Secretary or the Foreign Secretary will also require the review and approval of a senior judge. Furthermore, the Act establishes a new and better resourced surveillance oversight expert body, IPCO, to supervise how the new bulk powers are used. In the Netherlands the main law governing bulk collection is currently the Dutch Intelligence and Security Services Act 2017 which went fully into effect on 1 May 2018. With bulk powers already an operational reality, the challenge for the democratic governance is to increase the legitimacy and effectiveness of these practices. By comparing the two cases, we aim to sketch a few potential solutions to this dilemma.