438 Journal of the Spanish Institute for Strategic Studies N. 4 / 2014 cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly; but, in order to avoid arbitrariness of the State and given the secret nature of the measures, “the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures”.37 Furthermore, “the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference”.38 In its case law on the interception of communications, the ECtHR has developed the following minimum safeguards that should be set out in statute law: (1) the nature of the offences which may give rise to an interception order; (2) a definition of the categories of people liable to have their telephones tapped; (3) a limit on the duration of telephone tapping; (4) the procedure to be followed for examining, using and storing the data obtained; (5) the precautions to be taken when communicating the data to other parties; and (6) the circumstances in which recordings may or must be erased or the tapes destroyed.39 The ECtHR 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,40 and therefore applies them to situations created by the development of new surveillance technologies which in the British case allowed the interception of all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe. In fact, the UK Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication physically intercepted.41 Moreover, the 1985 Act conferred a wide discretion on the State authorities as regards which communications, out of the total volume of those physically captured, were listened to or read. The ECtHR recalls its case law to the effect that the procedures to be followed for examining, using and storing intercepted material, inter alia, should be set out in a form which is open to public scrutiny and knowledge.42 Furthermore, it pointed 37 Case of Weber and Saravia v. Germany, paragraph 93. 38 Case of Weber and Saravia v. Germany, paragraph 94. 39 Ibid., paragraph 95. 40 Case of Liberty v. United Kingdom, paragraph 63. 41 Ibid., paragraph 64. 42 Ibid., paragraph 67.
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