UK mass surveillance challenged in Europe’s highest human rights court

 

  • Campaign groups Big Brother Watch and others challenge UK Government mass surveillance before Grand Chamber at European Court of Human Rights
  • UK Government admits to bulk interception and automated processing to search for “unknown unknowns”
  • Government lawyers admit even confidential emails sent by the court would be caught in the UK’s surveillance dragnet

Today, the Grand Chamber of the European Court of Human Rights heard Big Brother Watch & others’ case against mass surveillance practices by the UK government.

The hearing saw Government lawyers defending bulk surveillance practices and admitting that even the court’s confidential emails could be scooped up by UK intelligence agencies.

The Government admitted that the purpose of bulk surveillance “is not to search for the communications of identified targets” but to gather mass data and decide “who should be a target”. Government lawyers revealed the UK intelligence agencies’ purpose for bulk surveillance powers is to search for “unknown unknowns” – a widely-ridiculed phrase used by former US Defence Secretary Donald Rumsfeld to defend the lack of evidence for weapons of mass destruction in Iraq in 2002.

The campaign groups argued that this is unlawful, as it cannot be considered necessary or proportionate in a democratic society and “treats everyone as under suspicion”.

The UK Government also admitted to deploying “automated rules” and “computerised searches” to sift through billions of intercepted calls, texts, emails and internet records.

The candid admission of mass data gathering signals a new approach from the Government, which put explicit bulk surveillance powers into UK law for the first time in 2016 via the controversial Investigatory Powers Act.

Questioned by the court as to the scale of the UK’s secret surveillance, Sir James Eadie QC, acting for the Government, responded: “To the extent that the sting of the question is, have you got lots of data even at the end of the filtering process, the answer to that question is yes  – and a jolly good thing too.”

Judge Alburquerque asked Eadie if this meant UK intelligence agencies would intercept confidential and legally privileged emails sent by the European Court of Human Rights to colleagues in the UK.

Eadie admitted, “it might be caught, because bulk interception is bulk interception – so one would not know.”

Campaign groups Big Brother Watch, English PEN, Open Rights Group and the computer science expert Dr. Constanze Kurz began the legal challenge in 2013 following revelations of the UK’s mass spying by NSA whistleblower Edward Snowden.

Documents provided by Mr Snowden revealed that the UK intelligence agency GCHQ was conducting “population-scale” interception, capturing the communications of millions of innocent people. The mass spying programmes included TEMPORA, a bulk data store of all internet traffic; KARMA POLICE, a catalogue including a “web browsing profile for every visible user on the internet”; and Black Hole, a repository of over 1 trillion events including internet histories, email and instant messenger records, search engine queries and social media activity.

Big Brother Watch and others told the Grand Chamber “the UK’s regime puts at risk the very values protected by the Convention that terrorism seeks to undermine”.

In September 2018 the European Court of Human Rights ruled that the UK’s mass interception programmes breached the European Convention on Human Rights as they lacked adequate safeguards. The landmark judgment marked the Court’s first ruling on UK mass surveillance since Mr Snowden’s revelations.

However, the campaign groups argued that the judgment did not go far enough in declaring unlawful the mass surveillance practices, pushing the case up to the Grand Chamber.

The Grand Chamber is expected to deliver a definitive judgment on the compatibility of mass communications surveillance with the European Convention on Human Rights early in 2020.

Director of Big Brother Watch, Silkie Carlo said:

This is the last stand in our legal challenge against the UK’s secret mass surveillance practices, revealed by Ed Snowden. The rights of millions of citizens to be free from unwarranted state spying hang in the balance. The outcome of this challenge is critical and will not only affect Brits but will set a precedent across Europe.

This challenge will determine whether human rights frameworks are able to protect democracies from the surveillance creep that recent technological leaps have enabled. The stakes are incredibly high and the Grand Chamber now has a vital opportunity to protect the future of the right to privacy in Europe.

 

Daniel Carey, Partner at Deighton Pierce Glynn acting as solicitor for Big Brother Watch & others said:

The Court heard that there is much more that domestic law can and should be doing to protect citizens’ privacy in the face of fast-expanding surveillance architecture. Today’s hearing represents a hugely significant opportunity to reassert the rule of law in this vital area and I am hopeful the Court will take it.

 

NOTES TO EDITORS:

Big Brother Watch press contact: 07730 439257

The legal challenge brought together three cases being heard simultaneously, with the following titles:

  • Big Brother Watch and Others v United Kingdom (no. 58170/13)
  • 10 Human Rights Organisations and Others v United Kingdom (no. 24960/15)
  • Bureau of Investigative Journalism and Alice Ross v United Kingdom (no.62322/14)

Big Brother Watch and Others are represented by Dan Carey (Deighton Pierce Glynn) and Helen Mountfield QC (Matrix Chambers).