UK surveillance laws face ECHR challenge

A landmark online privacy court case begins today at the European Court of Human Rights (ECHR) as ten civil liberties campaign groups challenge the UK Governments surveillance laws. It is the first major legal challenge to the UK’s existing online surveillance regime since the revelations of Edward Snowden back in 2013.

Three major cases being heard together

A panel of seven ECHR judges will hear three separate cases together. The first, which has been brought by a coalition of NGOs including Liberty, Amnesty International, Privacy International, the American Civil Liberties Union (ACLU) and groups from Pakistan, South Africa and Egypt, has already been heard by the UK’s domestic Investigatory Powers Tribunal.

That Tribunal ruled that the surveillance regime in the UK used to be unlawful under article 8 of the European Convention on Human Rights, which guarantees the right to privacy. However, the tribunal ruled that the surveillance regime was now compliant.

This ruling is now being challenged and could prove interesting as the British Tribunal was held partially in private, whereas the ECHR will hear the case in the public domain.

The other two cases are being brought by Big Brother Watch, another civil liberties campaign group, with the support of the Open Rights Group and the Bureau of Investigative Journalism amongst others. These two cases are based on the notion that state intervention of private online data is in breach of people’s right to freedom of expression and right to a fair trial.

All three cases are arguing that the interception and collection of data on an international scale by the British Government and its agencies is illegal.

Mass surveillance and bulk data retention programmes under scrutiny

The focus of the ECHR case will be on the surveillance schemes which Edward Snowden first revealed. They include Tempora, which allowed GCHQ, the UK’s signals intelligence agency to intercept and store all internet data entering and leaving the UK.

They will also consider Upstream, which gave the same powers to the USA’s National Security Agency (NSA) and Prism, which allowed the NSA to store any communications passing through the major online tech companies servers.

Inevitably, the UK Government is planning a robust defence, but from what is in the public domain so far, it doesn’t appear that they have a lot to fall back on.

A spokesperson for the UK Government said ahead of the case, “The interception of a communication as it flows through a fibre optic cable does not entail a substantial invasion of privacy … unless that communication is selected for examination: in other words unless a human examines it or may potentially examine it.”

In other words, they are claiming that it can only breach your right to privacy if they look at your personal data, not if they just collect it. This argument overlooks the fact that they have possession of that personal data and by storing it, they are potentially putting that data at risk.

GCHQ will also argue that the only way to protect the UK from terrorists is to intercept communications and then search it to identify communications of interest. They will also claim there is a difference between mass surveillance and the bulk interception of data. They admit to doing the latter and argue it is necessary, but deny that they do the former.

Likely impact on Investigatory Powers Bill

The case is likely to run for several days, but if the ECHR rules against the UK Government, the case could have a big impact on the new Investigatory Powers Act. That law was passed last year and handed UK intelligence Agencies even more sweeping powers to retain and examine private communications data.

But its impact would also be felt beyond the UK as well. As Amnesty International’s senior legal counsel, Nick William’s explained, “This case concerns the UK, but its significance is global. It’s a watershed moment for people’s privacy and freedom of expression across the world.”

Scarlet Kim, a legal officer for Privacy International’s added, “These practices are unlawful and violate the fundamental rights of individuals across the world, assailing privacy and chilling thought and speech. They are incompatible with open and democratic societies.”

Meanwhile, Griff Ferris from Big Brother Watch commented that “UK citizens who are not suspected of any wrongdoing should be able to live their lives in both the physical and the digital world safely and securely without such government intrusion.”

The civil liberties groups appear to be supremely confident of their stance, while the UK Government’s legal position appears, at best shaky. But the decision on whether the UK’s mass surveillance of communications data is legal or not, now ultimately rests with seven European judges.

The age of state online surveillance has seen a significant spike in VPN use in the UK and beyond. Many internet users will have a keen interest in the outcome of this case. And if the Court does rule in the UK Government’s favour, more people are likely to turn to a VPN to provide them with the online security and privacy that their Governments and legal systems are unable to offer.

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