The UK has a long history of surveillance, and...
Arguments against the UK intelligence agencies’ bulk collection and data sharing practices were heard by the court in November 2017. This case brought together three separate challenges from the following groups and individuals:
• The American Civil Liberties Union (ACLU), Amnesty International, Bytes for All, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, the Legal Resources Centre (South Africa), Liberty and Privacy International.
• Big Brother Watch, Open Rights Group, English PEN and Dr Constanze Kurz
• The Bureau of Investigative Journalism and Alice Ross
The case began in 2013, following Edward Snowden’s revelations that GCHQ was secretly intercepting, processing and storing data concerning millions of people’s private communications, even when those people were of clearly of no intelligence interest (the ‘Tempora’ programme).
Snowden also revealed that the Government was accessing communications and data collected by the USA’s National Security Agency and other countries’ intelligence agencies. All of this was taking place without public consent or awareness, with no basis in law and with no proper safeguards.
The information collected and stored by the Government can reveal the most intimate aspects of a person’s private life - where they go, who they contact, which internet sites they visit and when.
In 2014, the Investigatory Powers Tribunal - the highly secretive UK court which hears claims against GCHQ, MI5 and MI6 - ruled that these practices may in principle comply with the UK’s human rights obligations. This was the finding challenged in the European Court of Human Rights.
The Chamber judgment from the ECHR found, by a majority of five votes to two, that the UK’s bulk interception regime violates Article 8 of the European Convention on Human Rights (a right to respect for private and family life/communications) — on the grounds that “there was insufficient oversight both of the selection of Internet bearers for interception and the filtering; search and selection of intercepted communications for examination; and the safeguards governing the selection of ‘related communications data’ for examination were inadequate”.
Judges found that:
• The UK’s historical bulk interception regime violated the right to privacy protected by Article 8 of the European Convention on Human Rights (ECHR) and to free expression, protected by Article 10.
• The interception of communications data is as serious a breach of privacy as the interception of content, meaning the UK regime for bulk interception of communications data was unlawful.
• The UK’s regime for authorising bulk interception was incapable of keeping the “interference” to what is “necessary in a democratic society”.
Lucy Claridge, Amnesty International’s Strategic Litigation Director, said:
“The ruling represents a significant step forward in the protection of privacy and freedom of expression worldwide. It sends a strong message to the UK Government that its use of extensive surveillance powers is abusive and runs against the very principles that it claims to be defending.
Megan Goulding, Lawyer for Liberty, said:
“This is a major victory for the rights and freedom of people in the UK. It shows that there is – and should be – a limit to the extent that states can spy on their citizens. Police and intelligence agencies need covert surveillance powers to tackle the threats we face today – but the Court has ruled that those threats do not justify spying on every citizen without adequate protections.
“Our Government has built a surveillance regime more extreme than that of any other democratic nation, abandoning the very rights and freedoms terrorists want to attack. It can and must give us an effective, targeted system that protects our safety, data security and fundamental rights.”
Caroline Wilson Palow, General Counsel at Privacy International, said:
“Today’s judgment rightly criticises the UK’s bulk interception regime for giving far too much leeway to the intelligence agencies to choose who to spy on and when. It confirms that just because it is technically feasible to intercept all of our personal communications, it does not mean that it is lawful to do so. The judgment also rightly recognises that collecting communications data - the who, what, and where of our communications - is as intrusive as collecting the content. This is a significant and important enhancement of our privacy protections.”
The judgment is not yet final as it may still be referred to the Grand Chamber of the European Court of Human Rights. The judgment does have some room for improvement, as it does not go far enough in condemning bulk surveillance. It permits national governments a “wide margin of appreciation” in deciding whether to engage in bulk interception and greenlights vast intelligence sharing with the US National Security Agency (NSA).