The European Court of Human Rights deemed the UK's state surveillance regime as unlawful in a landmark ruling yesterday, adding fuel to the fire in a fresh challenge to the current government's latest snooping powers, enshrined in the Investigatory Powers Act of 2016.
In its judgement of the case Big Brother Watch and Others v. the United Kingdom, brought in 2013, the court concluded that police and security services had breached citizen's right to privacy by intercepting communications data in bulk, with little oversight of when these powers could be used - as revealed by NSA whistleblower Edward Snowden.
The court did not say that the UK's bulk data collection scheme broke the law, rather the lack of proper governance and oversight over how that information was collected was in breach of privacy and human rights law.
The main point of contention here boils down to the indiscriminate collection and retention of communications data, also known as bulk intercept, and the lack of oversight or governance over which citizens information may be collected and analysed by security services.
In its ruling, the ECoHR deemed the previous regime to have a "lack of oversight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst.
"Secondly, the absence of any real safeguards applicable to the selection of related communications data for examination."
Megan Goulding, a 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."
This is the latest successful challenge to the UK's state surveillance powers by pressure groups and MPs. As a quick recap:
- The Investigatory Powers Bill passed into law in November 2016 despite widespread concerns from privacy campaigners.
- A UK Court of Appeal ruling found the Data Retention and Investigatory Powers Act (DRIPA) – a previous law covering state surveillance which has been expanded upon with the Investigatory Powers Act of 2016 - was unlawful.
The court ruled that the legislation breached British people's rights by collecting internet activity and phone records and letting public bodies grant themselves access to these personal details with no suspicion of serious crime and no independent sign-off. The latest legislation will have to be "urgently changed" as a result.
The government has been given until November 1 this year to change the law. Liberty is challenging the latest Investigatory Powers Act in a separate case in the High Court to be heard later this year.
- In September 2018 the European Court of Human Rights (ECtHR) ruled that the UK mass interception programmes - revealed by NSA whistleblower Edward Snowden - breached the Article 8 right to privacy enshrined in the European Convention on Human Rights.
In its judgment, the ECtHR acknowledged that "bulk interception is by definition untargeted"; that there was a "lack of oversight of the entire selection process", and that safeguards were not "sufficiently robust to provide adequate guarantees against abuse".
The Court also noted concern that intelligence services could search and examine "related communications data” apparently without restriction.
This ruling is a major victory for privacy groups such as Big Brother Watch, English PEN and Open Rights Group that brought the case in 2013, but it does not have a direct impact on the 2016 Investigatory Powers Act. Rather, it provides lawyers currently challenging that law in the High Court with fresh ammunition.
Liberty's Megan Goulding said: "The government's Investigatory Powers Act replicated and vastly expanded the powers we challenged in this case, and the protections for our rights remain entirely inadequate. Liberty is challenging that Act in the High Court - which has already ruled major parts of it unlawful and demanded ministers change it so it no longer violates our rights.
"The reality is that industrial-scale surveillance of citizens can never be lawful in a free, rights-respecting democracy. Instead of continuing to fight this, the Government can and must give us a targeted system that protects our safety, our data security and our fundamental rights."
Dan Carey, a solicitor at Deighton Pierce Glynn added: "The Court has put down a marker that the UK government does not have a free hand with the public’s communications and that in several key respects the UK’s laws and surveillance practices have failed. In particular, there needs to be much greater control over the search terms that the government is using to sift our communications.
"The pressure of this litigation has already contributed to some reforms in the UK and this judgment will require the UK government to look again at its practices in this most critical of areas.”
Corey Stoughton, advocacy director at Liberty tweeted after the verdict: "The battle moves on now to [Liberty's] litigation challenging the current Snoopers Charter - the Investigatory Powers Act. Many of the legal flaws slammed in today’s decision are baked into that law. The wind is in our sails today."