The European Court of Human Rights in Strasbourg will hear a landmark case on surveillance this week as part of a challenge to the lawfulness of the UK’s surveillance laws and its intelligence agencies’ mass surveillance practices. Described by campaigners as a “watershed moment for people’s privacy and freedom of expression across the world”, the case is being brought by Amnesty International, Liberty, Privacy International and 11 other Human Rights and journalism groups – as well as two individuals – based in Europe, Africa, Asia and the Americas*.
The case is the latest stage in a protracted effort from the organisations to challenge the UK’s extremely wide-ranging surveillance powers following “startling” revelations by the US whistleblower Edward Snowden. In 2013, Snowden revealed how the UK’s GCHQ was allegedly secretly intercepting and processing millions of private communications of ordinary people on a daily basis (the ‘Tempora’ programme) and – “without a clear legal foundation or proper safeguards” – sharing data with the National Security Agency in the US as well as other countries’ intelligence agencies.
The Strasbourg case is a major test of the lawfulness of the UK’s continued blanket gathering and use of online data.
In December 2014, the Investigatory Powers Tribunal – the UK court which has jurisdiction over GCHQ, MI5 and MI6 – ruled that these practices may in principle comply with the UK’s Human Rights obligations, a finding that’s the subject of this challenge.
However, in February 2015 the Investigatory Powers Tribunal ruled that the UK Government’s access to US surveillance had been in breach of Human Rights law prior to the legal proceedings.
Watershed moment for privacy and freedom
The parties are pointing out that the UK’s surveillance laws and practices affect the privacy and other rights of millions of people around the world, at least in part because major Internet cables run from and to UK territory.
There are also major concerns, further highlighted by loose intelligence-sharing frameworks between Governments, about confidential sources often risking their life and liberty to speak out, not to mention the impact on the vital work of Human Rights groups.
As an illustration of these concerns, this case brings to the European Court of Human Rights’ attention a finding by the Investigatory Powers Tribunal that the communications of Amnesty and the South Africa-based Legal Resources Centre were unlawfully spied upon by UK intelligence agencies.
The case is also expected to have wide-ranging implications for last year’s controversial Investigatory Powers Act, which changed the UK’s legal framework governing surveillance matters, allowing for further blanket surveillance.
Among other things, and in addition to the indiscriminate interception of communications, the Investigatory Powers Act allows the security agencies to hack computers and other electronic devices on a large scale, harvesting potentially huge amounts of personal data from individuals who are not suspected of any criminal behaviour.
Challenging abuse of power
Martha Spurrier, director of Liberty, said: “Our organisations exist to stand up for people and challenge abuse of power. We work with whistleblowers, victims, lawyers, journalists and campaigners around the world, so confidentiality and protection of our sources is vital. The UK Government’s vast cross-border mass surveillance regime, which lets it access millions of people’s communications every day, has made those protections meaningless. Losing our privacy is the gateway to losing everything that keeps us free: the right to protest, the right to a fair trial, the right to practise our religion and the right to think and speak freely. No country that deploys industrial-scale state surveillance has ever remained a rights-respecting democracy. We now look to the European Court to uphold our rights where our Government has failed to do so.”
Nick Williams, Amnesty International’s senior legal counsel, commented: “This case represents a watershed moment for people’s privacy and freedom of expression across the world. The case concerns the UK, but its significance is global. By bringing together Human Rights defenders and journalists from four different continents, it serves to highlight the dangers mass surveillance poses to the vital work of countless organisations and to individuals who expose Human Rights abuses and defend those at risk.”
Scarlet Kim, legal officer at Privacy International, added: “For years, the UK Government has been intercepting the private communications and data of millions of people around the world. At the same time, it can access similarly enormous troves of information intercepted by the US Government. These practices are unlawful and violate the fundamental rights of individuals across the world. They’re incompatible with open and democratic societies. We call upon the European Court of Human Rights to reject them by finding bulk surveillance incompatible with the rights to privacy and freedom of expression enshrined in the European Convention on Human Rights.”
*The case brings together three separate challenges from the following groups and individuals: the American Civil Liberties Union, 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, Liberty and Privacy International, Big Brother Watch, the Open Rights Group, English Pen and Dr Constanze Kurz, the Bureau of Investigative Journalism and Alice Ross