WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT RELEVANT INTERNATIONAL LAW AND PRACTICE THE COUNCIL OF EUROPE The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies 34. In this report the Venice Commission made the following observations on the subject of jurisdiction: “Strategic surveillance is conducted both within the territory of a state and outside it, by units operating from military bases in allied states, embassies or in ships and aircraft on or, respectively, over the high seas. The collection of intelligence on or over the high seas, or in the territory of another state, with that state’s permission, will not be in violation of the customary international law norm of non-intervention. However, the case law of the European Court of Human Rights, and the UN Human Rights Committee clarifies that human rights obligations under these treaties can extend to activities conducted wholly extraterritorially. Collection facilities in military bases, or vessels situated outside national territory can thus also be within ‘jurisdiction’ for states parties to these treaties. In any event, the processing, analysis and communication of this material is clearly within national jurisdiction and is governed both by national law and states’ applicable human rights obligations. ... It may be technically possible for an agency in one state (A) remotely to gain access to computers physically situated within the territory of another state (B), and use this access to plant malware on the computer, allowing it to be monitored. This technical capability does not alter the fact that the computer is within the territory of B, and clearly within its criminal and administrative law jurisdiction. Thus, if A plants malware for security/law-enforcement purposes in computers in B, then this risks violating the norm of non-intervention if it is not done in compliance with B’s law (if this is possible under the law of B at all).” RELEVANT COMPARATIVE LAW AND PRACTICE I. JUDGMENT OF 19 MAY 2020 OF THE FEDERAL CONSTUTIONAL COURT (BUNDESVERFASSUNGSGERICHT) (1 BVR 2835/17) 35. The complainants in this case were mostly journalists who reported on human rights violations in conflict zones and in authoritarian States. They challenged the amended version of the Federal Intelligence Service Act (Gesetz über den Bundesnachrichtendienst) of 2016 as well as the surveillance measures to which they could be subjected pursuant to this legislation. The amendment of the Act created – for the first time – a statutory basis for the Federal Intelligence Service’s practice of strategic surveillance of foreign telecommunications. It granted the Federal Intelligence Service powers to access telecommunications transmission routes and networks to collect telecommunications data in order to identify telecommunications that were of interest to the intelligence services by the use of search terms 11