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British surveillance regime challenged at the European Court of Human Rights

British intelligence services are under scrutiny in a landmark European Court of Human Rights (ECHR) case. The legal action initiated by a number of human rights groups challenges the legality of top-secret mass surveillance programs that US whistleblower Edward Snowden revealed in leaked documents. It is part of an ongoing set of legal challenges against the UK government’s spying activities launched after Snowden’s revelations in 2013. The first court hearing took place in Strasbourg this Tuesday (November 7).

Previous challenges

Fourteen human rights and journalism groups based in Europe, Africa, Asia and the Americas joined three cases to challenge the lawfulness of mass surveillance at the ECHR. The organizations include the American Civil Liberties Union (ACLU), Amnesty International, Big Brother Watch, Liberty and Privacy International, among others.

Similar disputes with state surveillance powers have already been brought by some of these rights groups in the UK. For instance, the first complaints about the ability for GCHQ, the UK’s signals intelligence agency, to monitor the undersea fiber-optic cables that run through the country were raised back in 2013.

In 2015 the oversight court for the UK’s intelligence agencies decided that secret data-sharing between the UK’s GCHQ and the US National Security Agency (NSA) had in the past infringed the right to private life under Article 8 of the European convention on human rights. However, the Investigatory Powers Tribunal also pronounced that, once disclosed and “signposted,” the practice became compliant with human rights law.

Background and arguments from both sides

Tuesday’s hearing focused on data collection and cross-border spying programs between the UK and the US.

As revealed by Snowden, the UK spy agency GCHQ was, through its TEMPORA program, covertly intercepting communications traffic via fiber-optic undersea cables. The Upstream program allows the NSA to carry out similar operations in the US.

Another program, Prism, run by the NSA and also accessible to GCHQ, collects emails, chats, images, videos, and communications data from at least seven major US technology companies, including Apple, Facebook, Google, Microsoft, Skype, Yahoo! and Youtube.

GCHQ defends its methods claiming that the only way to target criminal or terrorist suspects is “to intercept a substantially greater volume of communications … and then apply a selection stage to identify the communications in question”.

Government lawyer James Eadie stated that using surveillance systems to collect and store communications is not itself a privacy intrusion. “The intelligence services rely on the use of small pieces of intelligence information obtained through bulk interception in order to find new threats and those responsible for them,” he added. Eadie also argued that there were proper checks and balances in place to keep the agencies in line.

The applicants claim, however, that the existing safeguards are “clearly defective.” For example, their representative called into question why domestic legal protections do not apply in a situation where two people in the UK use digital communications routed via servers in the US. She asked how “it can be acceptable that no warrant and no RIPA safeguards at all are required” when the interception is conducted by a third country service, even though the data is then passed on to the UK intelligence services for analysis and storage.

“The activities also breach the applicants’ rights to freedom of expression, including the vitally important right of journalists and human rights NGOs to impart and receive information in confidence,” the applicant lawyer Dinah Rose said, noting that these professions are not exempt from the snooping.

The European Court of Human Rights serves under the Council of Europe rather than the European Union. Therefore, the UK will remain bound by judgments made by the court even after it departs the EU.

The judgment is expected to be delivered sometime in early 2018.

Comments from rights groups

Tuesday’s challenge has been applauded as a “watershed moment” by campaigners. Nick Williams of Amnesty International told The Register that it was uncommon for the ECHR to hear oral statements – it only holds about four oral sessions per month.

Martha Spurrier, director of Liberty, said in a statement: “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 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.”

“For years, the UK government has been intercepting the private communications and data of millions of people around the world,” said Scarlet Kim, legal officer at Privacy International. She added: “[These practices] are incompatible with open and democratic societies.”



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