The government’s signals intelligence agency, GCHQ, today faces a landmark legal challenge to its mass surveillance programmes, which collect and store vast databases of people’s email and phone communications and data from telecommunications networks that pass through the UK.
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Some 10 human rights organisations, including Liberty, Amnesty International, Privacy International, the American Civil Liberties Union, and journalism groups, are challenging the lawfulness of GCHQ’s vast interception programme in the European Court of Human Rights (ECHR) in Strasbourg.
The case is the first time the ECHR (pictured above) has been asked to rule whether surveillance undertaken on a mass scale by the UK and other governments is lawful, and to address what minimum safeguards are needed to ensure the privacy of individuals – the majority of no intelligence value – caught up in electronic surveillance.
The campaigning groups will challenge the UK’s right to intercept in bulk and store the contents of any communication that passes through the UK on telecommunication networks and subsea cables, including emails and web browsing records.
They will also ask the court to rule on the lawfulness of UK intelligence agencies accessing intercepted communications from overseas intelligence agencies, including the US National Security Agency (NSA) – a practice the groups argue circumvents the safeguards imposed by UK law.
“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, one of the groups behind the case.
“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.”
“The UK intelligence services – the Security Service (MI5), the Secret Intelligence Service (MI6) and the Government Communications Headquarters (GCHQ) – can now intercept, store and analyse vast amounts of internet and telephone communications regardless of any individual ground for reasonable suspicion,” the non-government organisations (NGOs) argue in their application to the court.
Bulk interception by the UK, and the ability of the UK security services to obtain vast troves of data from the US and other intelligence partners, are incompatible with the rights to freedom of expression and privacy guaranteed by Articles 8 and 10 of the European Convention of Human Rights, the submission said.
The groups, which include the Bureau of Investigative Journalism, argue that the government is likely to have spied on their communications, violating their rights to privacy and freedom of expression, and jeopardising journalistic confidential sources and whistleblowers.
‘Unlawful’ spying and surveillance programmes
The UK’s most secret court, the Investigatory Powers Tribunal (IPT), revealed in a ruling in June 2015 that GCHQ has unlawfully spied on Amnesty International and South Africa’s Legal Resources Centre.
The case centres around surveillance programmes exposed by the former US National Security Agency contractor Edward Snowden.
They include Tempora, a UK government programme that allows GCHQ to store internet traffic entering the UK through fibre-optic cables for “retrospective analysis”.
GCHQ also has access to communications data collected by the US government through a series of programmes called Upstream, which collects vast amounts of data from taps on internet cables passing through the United States.
Another programme, Prism, run by the NSA and also accessible to GCHQ, collects emails, chats, videos, images and communications data from at least seven large US technology companies, including Microsoft, Apple, Yahoo!, Google, Facebook, Skype and Youtube.
In written submissions, the UK government argues that the human rights groups have mischaracterised the UK’s surveillance regime, and ignored the “surgical precision” which GCQH is required to interrogate the bulk data it collects.
“What ultimately matters for privacy rights is not the mere fact that data is subject to bulk interception. What matters is the adequacy of the safeguards that either allow or prevent such data from being examined, ” it said.
‘Watershed moment’ for privacy and freedom of expression
The hearing is the latest stage in a long legal battle by NGOs to challenge the UK’s wide-ranging surveillance powers, following revelations by Edward Snowden, that GCHQ was collecting and processing private communications of ordinary people on a vast scale.
It is likely to have wide-ranging implications for the Investigatory Powers Act 2016, which introduced sweeping new powers, including the ability for the security agencies to hack computers and electronic devices on a large scale, allowing the large scale harvesting of data from people – the majority of which are not suspected of criminal behaviour.
The European Court of Human Rights will test a ruling by the Investigative Powers Tribunal ruled in December 2014 that the blanket collection and use of online data may in principal comply with UK human rights obligations.
In a later decision, in February 2015, the IPT ruled that the UK government’s access to US surveillance had been in breach of human rights law up until the point legal proceedings began. The applicants in the case argue that the practice continues to be unlawful under European Human Rights law.
The organisations say in court filings that suspicion-less collection of text messages, phone records and video conversations, on a mass scale, puts the work of the organisations, and the individuals they assist, at risk.
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 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.”
Nick Williams, senior legal counsel at Amnesty International, said: “This case is a watershed moment for people’s privacy and freedom of expression across the world. The case concerns the UK, but its significance is global.”