UK government must justify its large-scale surveillance activities

The European Court of Human Rights (ECtHR) asks the UK government to
justify how GCHQ’s practices comply with the right to privacy under
Article 8 of the European Convention.

The ECtHR’s action follows a case brought by Big Brother Watch, the EDRi
member Open Rights Group, English PEN and the German Internet activist
Constanze Kurz on 4 September 2013, in the light of Snowden’s
revelations regarding the large-scale surveillance by US and UK
intelligence service. The groups argue that by collecting data on
millions of innocent people, GCHQ has infringed the privacy rights of
all European citizens and breached the right to privacy under Article 8
of the European Convention on Human Rights.

“We now know that GCHQ operate a central database of communications
despite Parliament being told such a database would not be built. This
legal challenge is an essential part of getting to the bottom of why the
public and Parliament have not been properly informed about the scale of
surveillance and why our privacy has been subverted on an industrial
scale,” said Nick Pickles, director of Big Brother Watch.

The case was first brought in the UK domestic courts and the groups
wrote to the UK Government on 3 July 2013 stating that a judicial review
challenge would be brought. The government told the applicants they
would have to make a complaint to the Investigatory Powers Tribunal (a
tribunal that hears complaints against the intelligence services in
secret). But in the previous Kennedy v UK case, the ECtHR ruled that
applicants din not have to complain to the Investigatory Powers Tribunal
before making an application to Strasbourg, due to concerns regarding
the tribunal’s effectiveness and power to grant the necessary solution.

The case refers mainly to Prism and Tempora surveillance programmes
which allow GCHQ and NSA to harvest, store and analyse data from
millions of phone calls, emails and search engine queries.

The court has asked the Government to argue why the UK intelligence
services have the right to require, receive, search, analyse,
disseminate and store data intercepted by themselves, or other foreign
spy agencies. The court asked the ministers to prove that this activity
is “within the law” and “necessary in a democratic society”.

The applicants have asked the Court to declare that the UK’s internet
surveillance practices are disproportionate and to order the UK to adopt
internet surveillance practices that recognise our rights to privacy.
This means that new laws are necessary to require surveillance to be
proportionate, to be overseen by judicial authorities acting in public,
to allow notification of persons affected by surveillance and to be
overseen by adequately resourced and empowered regulators.

GCHQ and the UK government continue to argue their work “is carried out
in accordance with a strict legal and policy framework which ensures
that our activities are authorised, necessary and proportionate, and
that there is rigorous oversight, including from the secretary of state,
the Interception and Intelligence Services commissioners and the
parliamentary intelligence and security committee”.

ECtHR is dealing with the issue as a priority and has given the
government until 2 May 2014 to respond, after which the case will move
into the final stages before judgement.

British government to answer fast-track spy challenge (24.01.2014)
https://www.privacynotprism.org.uk/news/2014/01/24/british-government-to-answer-fast-track-spy-challenge/

Justify GCHQ mass surveillance, European court tells ministers
(24.01.2014)
http://www.theguardian.com/uk-news/2014/jan/24/justify-gchq-mass-surveillance-european-court-human-rights

EDRi-gram: UK surveillance activities have been challenged at the ECtHR
(9.10.2013)
https://edri.org/uk-surveillance-activities-have-been-challenged-at-the-ecthr