Human rights groups win European Court of Human Rights claim on UK mass surveillance regime

The Grand Chamber of the European Court of Human Rights has today ruled that UK mass surveillance laws violate the rights to privacy and freedom of expression.

It 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 and freedom of expression, protected by Article 10. Particularly it found that:
  • the absence of independent authorisation,
  • the failure to include the categories of selectors in the application for a warrant, and
  • the failure to subject selectors linked to an individual to prior internal authorisation were incompatible with human rights standards.
• It further confirmed that the interception of communications data is as serious a breach of privacy as the interception of content and should be subjected to the same protections. The UK regime for bulk interception of communications data was hence unlawful.
• There were insufficient safeguards for access to journalistic sources that require prior independent or judicial approval.

The ruling goes further than the European Court of Human Rights’ 2018 ruling, by providing for new and stronger safeguards, adding a new requirement of prior independent or judicial authorisation for bulk interception. Authorisation must be meaningful, rigorous and check for proper ‘end-to-end safeguards’.

The ruling is the culmination of an eight year legal battle against the UK government by Privacy International and 15 other applicants, that began after Snowden revealed the existence of secret mass surveillance and intelligence sharing programmes operated by the intelligence agencies of the United States and the United Kingdom.

Ilia Siatitsa, acting Legal Director at Privacy International said:

“Today’s ruling is an important win for privacy and freedom for everyone in the UK and beyond. Until the Snowden revelations, no one even knew about these mass surveillance regimes. It was all in the shadows, without any oversight or accountability. Since 2013, we were at least – and at last – able to scrutinise the intelligence agencies’ surveillance capabilities. Today the Court reiterated that intelligence agencies cannot act on their own, in secret and in the absence of authorisation and supervision by independent authorities. They must be accountable because their capabilities to access personal data about each and every one of us – even if we’re not suspected of any wrongdoing – pose serious risks in a democratic society. The judgment offers some pieces of the puzzle for stronger protections in the future, but it is not the end. We will continue to fight against abusive mass surveillance powers and for stronger protections for everyone across the globe.”

Liberty lawyer Megan Goulding said:

“We all want to have control over our personal information, and to have a Government that respects our right to privacy and our freedom of expression. That’s what makes today’s victory, and the Court’s recognition of the dangers posed by these mass surveillance powers, so important.

“Bulk surveillance powers allow the State to collect data that can reveal a huge amount about any one of us – from our political views to our sexual orientation. These mass surveillance powers do not make us safer.

“Our right to privacy protects all of us. Today’s decision takes us another step closer to scrapping these dangerous, oppressive surveillance powers, and ensuring our rights are protected.”

Kate Logan, Senior Legal Counsel at Amnesty International, said:

“The unfettered harvesting and processing of millions of people’s private communications must end. Today’s ruling marks a significant step forward in condemning surveillance at the whim of the government.

“Significantly, the Court made clear that states cannot delegate the power to authorize surveillance to the executive branch of government, nor treat hundreds of millions of people’s private communications as a free-for-all commodity.”

Parties to the case

This case brought together three separate challenges from 16 groups and individuals (activists and journalists) that were joint together by the Court, specifically:

• 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.

Background to the case

The case began in 2013, following Edward Snowden’s revelations that also UK’s GCHQ was secretly intercepting, processing and storing data concerning millions of people’s private communications, even when those people were clearly of no intelligence interest (the ‘Tempora’ programme).

Snowden also revealed that the UK 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 tribunal which hears claims against all UK’s intelligence agencies (GCHQ, MI5 and MI6) – ruled that these practices may in principle comply with the UK’s human rights obligations. This finding was challenged in the European Court of Human Rights.

However, the UK court found that UK intelligence sharing with the US, which had been governed under a secret legal framework, was unlawful until disclosed during the proceedings.

During these initial proceedings, the Investigatory Powers Tribunal also confirmed that UK intelligence agencies had unlawfully spied on the communications of Amnesty International and South Africa’s Legal Resources Centre.

Between 2013 and 2015, 16 organisations and individuals brought three separate cases challenging UK’s mass surveillance practices before the European Court of Human Rights. The tree cases were joint together and challenged three different UK surveillance programmes: the bulk interception of communications; intelligence sharing and obtaining of communications data from communications service providers.

In September 2018, the First Section of the European Court of Human Rights ruled that UK laws enabling mass surveillance violate the rights to privacy and freedom of expression. But the judgment was not yet final.

The case was then referred to the Grand Chamber of the European Court of Human rights, who has today made its final ruling.

The UK bulk powers regulated today by the Investigatory Powers Acts 2016 have also been challenged.

On the same day, the Grand Chamber of the European Court of Human Rights on a separate case brought by Centrum för rättvisa also found that Swedish bulk interception laws violated the right to privacy.

The article was first published by EDRi’s member Privacy International here.

Image credit: @ Adrian Grycuk (Creative Commons licence: CC BY-SA 3.0 pl)

(Contribution by: EDRi member, Privacy International)