Court: British surveillance violates European law

Clay Curtis
September 15, 2018

However, that new law-the Investigatory Powers Act-is already being revised after the country's high court ruled it broke European human rights rules.

Commenting on the ECHR's ruling, Silkie Carlo, director of Big Brother Watch, said: "This landmark judgment confirming that the UK's mass spying breached fundamental rights vindicates Mr Snowden's courageous whistleblowing and the tireless work of Big Brother Watch and others in our pursuit for justice".

However, the ECtHR rejected complaints regarding the way in which United Kingdom law facilitated the sharing of "intercept material" with foreign intelligence agencies, and further said that campaigners must seek to resolve disputes relating to surveillance matters before the UK's Investigatory Powers Tribunal in future before raising a case with the ECtHR unless they can show "special circumstances" applied.

The court did rule that a bulk operation on its own does not break the convention, but said that such a regime "had to respect criteria set down in its case law".

It noted that European Union law required that any regime allowing access to data held by communications service providers had to be limited to the goal of combating "serious crime", and that access be subject to prior review by a court or independent administrative body.

The court also flagged problems with "the absence of any real safeguards applicable to the selection of related communications data for examination".

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The court also criticised powers to ask internet companies to hand over "communications data" - the basic technical facts of how people have exchanged information. They centred on complaints about powers given to security services under the Regulation of Investigatory Powers Act 2000 (RIPA) - which was later replaced with the Investigatory Powers Act (IPA) in November 2016.

The judges ruled against the 16 complainants on the question of whether Britain further violated their privacy by sharing intelligence with foreign governments, saying that did not constitute a breach of their rights. It also found that both the method of bulk interception of communications and the process for obtaining communications metadata from service providers violated Article 10 (freedom of expression) because of "insufficient safeguards in respect of confidential journalistic material". Snowden revealed a number of GCHQ spying programs, including "Tempora", which stored all internet traffic in bulk; "Karma Police", which created a web-browsing profile for every visible internet user; and "Black Hole", a repository of over 1 trillion online events, including internet histories, email and message records, and social media activity.

The Government said it would give "careful consideration" to the court's findings. Other mass-surveillance cases, including one against the French government's Intelligence Act of July 24, 2015, are still pending.

In 2016, Parliament passed the Investigatory Powers Act in a massive overhaul of surveillance law.

"This judgment is a vital step towards protecting millions of law-abiding citizens from unjustified intrusion".

"This includes the introduction of a "double lock" which requires warrants for the use of these powers to be authorised by a Secretary of State and approved by a judge", the government said in a statement.

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