UK mass surveillance found unlawful by Europe’s highest human rights court

UK mass surveillance found unlawful by Europe’s highest human rights court

The Grand Chamber of the European Court of Human Rights today ruled that the UK’s mass interception programmes, disclosed by NSA whistleblower Edward Snowden, unlawfully breached citizens’ rights to privacy and free expression.

Campaign groups Big Brother Watch, Open Rights Group, English PEN computer science expert Dr. Constanze Kurz brought the challenge following Mr Snowden’s revelations in 2013, joined by Amnesty International, Liberty, Privacy International, the Bureau of Investigative Journalism and others.

The judgment confirms definitively that the UK’s bulk interception practices were unlawful for decades, a finding that vindicates Mr Snowden’s whistleblowing.

Documents provided by Mr Snowden revealed that the UK intelligence agency GCHQ was conducting “population-scale” interception, capturing the communications of millions of innocent people. The mass spying programmes included:

• TEMPORA, a bulk data store of all internet traffic;
• KARMA POLICE, a catalogue including a “web browsing profile for every visible user on the internet”;
• Black Hole, a repository of over 1 trillion events including internet histories, email and instant messenger records, search engine queries and social media activity.

In September 2018, the European Court of Human Rights ruled that the UK’s mass interception programmes breached the European Convention on Human Rights as they lacked adequate safeguards. The landmark judgment marked the Court’s first ruling on UK mass surveillance since Mr Snowden’s revelations.

However, the campaign groups argued that the judgment did not go far enough in declaring the mass surveillance practices unlawful, pushing the case up to the Grand Chamber.

End to end safeguards

Today, the Grand Chamber judgment upheld that the bulk interception had unlawfully breached citizens’ privacy and free expression rights and elaborated on the need for “end to end safeguards” throughout surveillance practices to respect fundamental rights. The judgment means that bulk surveillance in the UK and across Europe will require prior independent or judicial authorisation, checking for adequate “end to end safeguards”, from the initial collection of data to the selection of items for storage.

In July 2019, the Grand Chamber heard Big Brother Watch & others’ case against mass surveillance practices by the UK government. The hearing saw Government lawyers defending bulk surveillance practices and automated processing to sift through billions of intercepted calls, texts, emails and internet records. The UK Government even admitted that the court’s confidential emails could be scooped up by UK intelligence agencies.

The Government admitted that the purpose of bulk surveillance “is not to search for the communications of identified targets” but to gather mass data and decide “who should be a target”.

The candid admission of mass data gathering signals a new approach from the Government, which put explicit bulk surveillance powers into UK law for the first time in 2016 via the controversial Investigatory Powers Act (IPA). The IPA is now subject to a legal challenge by human rights group Liberty.

Big Brother Watch and others told the Grand Chamber “the UK’s regime puts at risk the very values protected by the Convention that terrorism seeks to undermine”. The campaign groups argued that mass interception is unlawful, as it cannot be considered necessary or proportionate in a democratic society and “treats everyone as under suspicion”.

Whilst the Court’s majority opinion focused on safeguards on the bulk regime, the applicants’ broader analysis about the risks of mass interception was supported by a dissenting opinion from Judge Pinto de Alburquerque, who found that:

“Admitting non-targeted bulk interception involves a fundamental change in how we view crime prevention and investigation and intelligence gathering in Europe, from targeting a suspect who can be identified to treating everyone as a potential suspect, whose data must be stored, analysed and profiled (…) a society built upon such foundations is more akin to a police state than to a democratic society. This would be the opposite of what the founding fathers wanted for Europe when they signed the Convention in 1950.”

QUOTES

Silkie Carlo, director of Big Brother Watch said:

“This judgment confirms that the UK’s mass spying breached citizens’ rights to privacy and free expression for decades. Today, Mr Snowden’s courageous whistleblowing is vindicated as is the tireless work of Big Brother Watch and our allies in this pursuit of justice. Mr Snowden clearly deserves the protection of democratic nations across Europe for his selfless defence of human rights.

Mass surveillance damages democracies under the cloak of defending them, and we welcome the Court’s acknowledgement of this. As one judge put it, we are at great risk of living in an electronic “Big Brother” in Europe. We welcome the judgment that the UK’s surveillance regime was unlawful, but the missed opportunity for the Court to prescribe clearer limitations and safeguards mean that risk is current and real.

We will continue our work to protect privacy, from parliament to the courts, until intrusive mass surveillance practices are ended.”

Jim Killock, Executive Director of Open Rights Group said:

“The Court has recognised that bulk interception is an especially intrusive power, and that ‘end-to-end safeguards’ are needed to ensure abuse does not occur.

“The court has shown that the UK Government’s legal framework was weak and inadequate when we took them to court with Big Brother Watch and Constanze Kurz in 2013.

“The court has set out clear criteria for assessing future bulk interception regimes, but we believe these will need to be developed into harder red lines in future judgments, if bulk interception is not to be abused.

“As the court sets out, bulk interception powers are a great power, secretive in nature, and hard to keep in check. We are far from confident that today’s bulk interception is sufficiently safeguarded, while the technical capacities continue to deepen. GCHQ continues to share technology platforms and raw data with the USA.

“This judgment is an important step on a long journey.”

Daniel Gorman, director of English PEN said:

“This major judgment reaffirms that the British government’s bulk surveillance practices have violated our right to privacy and our right to freedom of expression. Excessive surveillance discourages whistleblowing and curtails investigative journalism. The government must now take action to ensure our rights are protected. Given the growth in online speech, the potential for abuse inherent in mass surveillance regimes is greater than ever.”

Dan Carey of Deighton Pierce Glynn, the solicitor representing the applicants, stated as follows:

“I am pleased that the court has affirmed that secret surveillance programmes are subject to the application of human rights law. This is an important reward for our clients after 8 years of litigation following Edward Snowden’s disclosures and it is essential for all of us, since we are all subject to these bulk interception programmes. The court has set out useful standards on both the principles to be applied to such programmes but also the detail of their operation.”

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.”

Alastair Pringle, Interim Chief Executive of the Equality and Human Rights Commission, said:

“Governments have a duty to protect the safety of their citizens. While we can all accept a level of intelligence gathering should exist for that reason, appropriate safeguards must be in place to protect our privacy and freedom of expression. As digital footprints grow and technologies that enable mass interception of personal data develop, our laws and safeguards should continue to adapt at the same pace.”

NOTES TO EDITORS:

• Big Brother Watch press contact: 07730 439257 or [email protected]
• Open Rights Group press contact: [email protected] or 07894498127

• The legal challenge brought together three cases being heard simultaneously, with the following titles:
  • Big Brother Watch and Others v United Kingdom (no. 58170/13)
  • 10 Human Rights Organisations and Others v United Kingdom (no. 24960/15)
  • Bureau of Investigative Journalism and Alice Ross v United Kingdom (no.62322/14)

• Big Brother Watch and Others are represented by Daniel Carey (Deighton Pierce Glynn), Ravi Mehta (Blackstone Chambers), Flora Robertson (Blackstone Chambers) and Helen Mountfield QC (Matrix Chambers).
• The judgment is available here: https://hudoc.echr.coe.int/eng#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-210077%22]}

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