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Civil liberties groups to challenge bulk surveillance and intelligence sharing in Strasbourg

Coalition of campaigning groups wins the right to challenge the UK’s use of bulk surveillance powers, which allows suspicionless surveillance of the population and sharing of intercepted data with overseas intelligence agencies, in European Court of Human Rights

Civil liberties groups have won the right to challenge the UK’s extensive bulk surveillance powers in the European Court of Human Rights’ highest legal body.

The Grand Chamber of the European Court of Human Rights (ECtHR) said yesterday that it would hear an application by a coalition of campaigning groups over the legality of bulk surveillance.

The decision follows a landmark decision by the ECtHR in September 2018, which found that GCHQ’s use of mass surveillance of online communications data breached privacy laws and lacked sufficient oversight and safeguards.

The civil liberties groups bringing the case say the decision did not go far enough in its ruling against bulk surveillance, and are seeking what they say is a definitive judgment that will put an end to laws that permit bulk interception of large numbers of law-abiding people.

Megan Golding, lawyer for Liberty, one of the non-governmental organisations (NGOs) backing the case, said the UK should respect the rights of UK citizens, rather than treat the public engaged in their day-to-day lives as suspects.

“The surveillance regime the UK government has built seriously undermines our freedom. Spying on vast numbers of people without suspicion of wrongdoing violates everyone’s right to privacy and can never be lawful,” she said.

The Strasbourg court acknowledged for the first time last year that the interception of data related to people’s communications – including times and destinations of emails and phone calls, web pages visited and mobile phone location – poses as serious a risk to individuals’ privacy as the interception of phone calls, emails and text messages.

The court considered surveillance under the UK’s Data Retention and Investigatory Powers Act 2014, which has been superseded.

But a further ruling by the Grand Chamber is likely to have significant implications for the UK’s current surveillance law, the Investigatory Powers Act 2016 – known as the snoopers’ charter.

Government sharing of data

The NGOs, in particular, aim to challenge a finding by the European Court of Human Rights that the UK’s sharing of intercepted material with overseas intelligence agencies, including the US National Security Agency (NSA), was legal under European law.

The UK and the US first signed an ultra-secret intelligence agreement in March 1946, known as UKUSA, agreeing to share foreign intelligence. Further intelligence sharing agreements were signed by English-speaking countries, including Canada, New Zealand and Australia – known as the Five Eyes. The list of collaborating intelligence agencies has since been vastly expanded.

“The surveillance regime the UK government has built seriously undermines our freedom. Spying on vast numbers of people without suspicion of wrongdoing violates everyone’s right to privacy and can never be lawful”
Megan Golding, Liberty International

The court found that there was no evidence that the rights of European citizens had been abused through the UK’s sharing and acquisition of communications data overseas.

Bulk interception

After a five-year battle by 14 NGOs and individuals, judges at the ECtHR found that bulk surveillance of communications data showed patterns that could paint an intimate picture of a person by mapping out their social networks, location, internet browsing behaviour and who they have been interacting with.

There was insufficient oversight over GCHQ’s selection of internet bearers – which carry internet traffic – for interception and filtering, and the search and selection of intercepted communications for examination.

The ECtHR ruled by five votes to two that the UK’s bulk interception regime violated Article 8 of the European Convention on Human Rights, which protects family and private life.

In a 200-page judgment, the court held by six votes to one that the methods used by UK government bodies to obtain private data from telephone and internet service providers also violated Article 8.

Although the court said it had no doubt that communications data was an essential tool of the intelligence services in the fight against terrorism and serious crime, it said it did not consider that the “authorities have struck a fair balance” by “exempting it entirely from the safeguards applicable to the searching and examination of content”.

Snowden revelations

The case began in 2013, following revelations by whistleblower Edward Snowden that GCHQ was secretly intercepting, processing and storing data from millions of people’s private communications, even when they were of no intelligence interest.

The mass spying programmes included Tempora, which intercepts data from communications cables, Karma Police, which keeps records of the web browsing activities of every user on the internet, and Black Hole, a huge database containing internet histories, records of email, social media, search engine queries and instant messaging communications. 

The Investigatory Powers Tribunal (IPT), the UK’s most secret court, ruled in 2014 that bulk interception and intelligence sharing with foreign governments were, in principle, compliant with the UK’s human rights obligations.

The IPT found, however, that the UK intelligence agencies had unlawfully spied on the communications of Amnesty International and South Africa’s Legal Resources Centre.

The European Court of Human Rights heard a challenge from 11 human rights organisations and individuals on 7 November 2017.

Lucy Claridge, director of strategic litigation at Amnesty International, said mass surveillance on an industrial scale made it difficult for organisations such as Amnesty International to carry out its human rights work, as it put confidential sources at risk from government intrusion.

“The UK government’s mass surveillance practices are way beyond the pale. It is high time to come to terms with the fact that people’s rights to privacy and freedom of expression are not expendable commodities,” she said.

Caroline Wilson Paltrow, general counsel at Privacy International, called on the ECtHR to end mass surveillance practices by ruling that they are “fundamentally incompatible” with the rights to privacy and freedom of expression enshrined in the European Convention on Human Rights.

“The UK government continues to intercept enormous volumes of internet traffic flowing across its borders. And it continues to have access to similarly vast troves of information intercepted by the US government.”

The case was brought by Privacy International, 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 and Liberty. Other parties were Big Brother Watch, the Open Rights Group, English PEN, Constanze Kurz, The Bureau of Investigative Journalism and Alice Ross.

Read more about the case

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