13 Sep European Court of Human Rights declares UK’s mass surveillance regime unlawful
In a landmark judgment concerning state surveillance, the European Court of Human Rights has today found that the UK’s regime for the bulk surveillance of our telephone use, electronic communications and web activity violates the public’s right to privacy.
The European Court of Human Rights (ECtHR) today ruled that the UK’s mass interception programmes have breached the European Convention on Human Rights. The judgment marks the Court’s first ruling on UK mass surveillance programmes revealed by Edward Snowden. Deighton Pierce Glynn represented they campaign groups Big Brother Watch, Open Rights Group, English PEN, and computer science expert Dr Constanze Kurz in the case, which began following Mr Snowden’s revelations of GCHQ mass surveillance. They instructed Helen Mountfield QC of Matrix Chambers and Tom Hickman and Ravi Mehta of Blackstone Chambers as counsel.
In powerful language, the Court gave a stark warning in today’s judgment that “a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it”. It went on to find that UK’s laws and practices relating to the bulk interception of our communications were inadequate in several key respects. In particular, the failure to constrain the use of “selectors” (the thousands of search terms that the intelligence services use to sift our communications) and the failure to apply safeguards to “communications data” (the time, location, identity, and website address of communications) violated the public’s right to privacy under Article 8 ECHR.
The Court also found that it is only with the UK government’s most recent inquiries and reforms in the wake of pressure by Big Brother Watch, Open Rights Group, Privacy International, Liberty, Amnesty International and others that the UK’s system for authorising and reviewing interception warrants was lawful. At the time of Edward Snowden’s revelations, none of this was in place. The judgment is a vindication of the efforts by our clients and others to force a public debate about the extent of these powers, founded on the disclosures of Edward Snowden.
Although this judgment concerned the Regulation of Investigatory Powers Act 2000, much of which has now been overtaken by the Investigatory Powers Act 2016, many of the Court’s observations apply to the new law. More work will now follow to ensure that a greater focus is placed on safeguards to protect the public’s privacy under the new regime.
Dan Carey of Deighton Pierce Glynn, the solicitor representing the applicants, stated as follows:
“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.”
Big Brother Watch, English PEN, Open Rights Group and Dr Constanze Kurz made their application to the Court in 2013 following Edward Snowden’s revelations that UK intelligence agencies were running a mass surveillance and bulk communications interception programme, TEMPORA, as well as receiving data from similar US programmes, PRISM and UPSTREAM, interfering with UK citizens’ right to privacy.
The case challenged the legality of the indiscriminate surveillance of UK citizens and the bulk collection of vast amounts of their personal information and communications by UK intelligence agencies under the Regulation of Investigatory Powers Act 2000 (RIPA). The UK surveillance regime under RIPA was untargeted, meaning that UK citizens’ personal communications and information was collected at random without any element of suspicion or evidence of wrongdoing, and this regime was effective indefinitely.
The surveillance regime was challenged on the grounds that there was no sufficient legal basis, no accountability, and no adequate oversight, and that as a result, it infringed UK citizens’ Article 8 right to a private life.