Powers allowing the police service and public bodies alike to grant themselves access to people’s communications data with no external oversight of that process or the need for suspicion of serious criminality in order to do so breach Human Rights law. That’s the conclusion of a senior judge at the Court of Justice of the European Union (CJEU).
According to rights and freedoms group Liberty, if Judges agree with the Advocate General’s opinion – published following a challenge by Tom Watson MP (represented by Liberty) – the decision could “stop the Government’s fatally flawed Investigatory Powers Bill in its tracks” and mark a “watershed moment” in the fight for a “genuinely effective, lawful and targeted system of surveillance” that keeps British people safe while at the same time respecting their rights.
The challenge was initially brought by Watson and fellow MP David Davis, who has recently been appointed a Government minister within Prime Minister Theresa May’s new Cabinet. As a minister bound by the principle of collective responsibility, he now cannot bring a claim against the Government challenging Government policy.
In his considered opinion, Advocate General Henrik Saugmandsgaard Øe concludes that:
*Although broad data retention may be lawful in some circumstances, domestic courts must “rigorously verify” that there’s no other less intrusive measure (such as targeted retention) that can be as effective in fighting serious crime
*Access to retained data must be strictly restricted to the purpose of preventing and detecting precisely defined serious crime
*Access to retained data must be subject to prior authorisation, and carried out by a court or an independent body
A panel of Judges will now review the opinion – which can be read here – and are expected to give their verdict in the coming weeks. The Court typically follows the Advocate General’s conclusions.
Expansion of “blanket data-gathering powers”
James Welch, legal director for Liberty, said: “The Investigatory Powers Bill – the much-trumpeted legacy of our new Prime Minister’s time at the Home Office – goes much further than the law now condemned. This ‘Snoopers’ Charter’ will vastly expand blanket data-gathering powers, while failing to provide even the basic safeguards outlined by the Advocate General. Dozens of public bodies will be able to grant themselves access to our most revealing personal data – including our web browsing histories – with no need for suspicion of criminality to do so.”
Welch added: “This opinion is a clear message to our blinkered Government – your proposed new law breaches our Human Rights.”
Liberty has campaigned for an overhaul of UK surveillance laws for years. The organisation firmly believes proposals put forward in the Investigatory Powers Bill are unclear, unworkable and potentially unlawful and will make us less safe and less free. According to Liberty, the Government has failed to make the case for the speculative mass surveillance powers contained within the Bill.
Liberty suggests that a dynamic and targeted system – with surveillance conducted for tightly defined reasons – would more effectively aid the investigation and prevention of serious crime, while respecting British people’s fundamental right to privacy and maintaining online security.
Background to the case
Tom Watson’s challenge to the Data Retention and Investigatory Powers Act (DRIPA) – the surveillance law “rushed through Parliament” in 2014 – was heard by the CJEU in April alongside a Swedish case challenging the lawfulness of bulk communications data retention.
DRIPA allows the Home Secretary to force communications companies to keep communications data for 12 months. It catches the records of everybody in the UK, including the confidential or privileged correspondence of Members of Parliament, journalists, lawyers and doctors.
This data is “subject to an extremely lax access regime” and can be obtained by hundreds of public bodies, many of which can authorise access themselves for an expansive range of reasons that have nothing to do with the investigation of serious crime.
In July last year, the High Court ruled these failings meant that DRIPA breached people’s fundamental rights to privacy and protection of data. The Government appealed, and Court of Appeal Judges sought clarification from the CJEU in December.
Impact on the new ‘Snoopers’ Charter’
If the CJEU Judges’ verdict follows the conclusion of the Advocate General and finds the scheme of self-authorised access for a range of non-crime purposes breaches Human Rights law, significant sections of the Investigatory Powers Bill will then be called into question.
Currently being debated by the Lords in Parliament, the legislation not only seeks to re-legislate for DRIPA, but goes much further. Despite the Home Secretary’s claim that it creates a “world-leading” oversight regime, it would dramatically expand the mass data-gathering powers condemned in this latest opinion with no attempt to remedy the lack of safeguards raised by the Advocate General and the UK High Court.
The Bill would force Internet Service Providers to generate and hand over every person’s Internet Connection Records – a euphemism for their entire browsing history – regardless of criminality or suspicion. This information can then be accessed by a large number of organisations and Government agencies (among them HMRC, the Food Standards Agency and the Department for Work and Pensions) with no need for suspicion of criminality or sign-off from a Judge or other independent official prior to such a process taking place.
It also seeks to legalise several other bulk powers, including hacking, interception and the acquisition of vast databases containing sensitive information on “millions of innocent people”.