A series of mass surveillance and bulk data collection programmes conducted by UK intelligence agency, GCHQ, have been ruled unlawful.
According to the Grand Chamber of the European Court of Human Rights, the mass interception programmes unlawfully breached citizens’ rights to privacy and free expression.
The judgment, announced today, confirms definitively that the practices were unlawful.
However, while the extent and methods were deemed in breach, the decision to operate such an interception scheme was ruled to not violate the European Convention on Human Rights.
Furthermore, the way GCHQ shares sensitive digital intelligence with foreign governments was not found to be illegal.
According to the ruling, 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”.
- Black Hole, a repository of over 1 trillion events including internet histories, email and instant messenger records, search engine queries and social media activity.
The programmes were originally disclosed by NSA whistleblower Edward Snowden, who provided documents revealing the scale of public surveillance.
Following the revelation, campaign groups Big Brother Watch, Open Rights Group and English PEN computer science expert Dr. Constanze Kurz brought the challenge in 2013, and were joined by Amnesty International, Liberty, Privacy International, the Bureau of Investigative Journalism and others.
Commenting on the ruling, Big Brother Watch Director Silkie Carlo said: “This judgment confirms that the UK’s mass spying breached citizens’ rights to privacy and free expression for decades.
“Today, Mr Snowden’s courageous whistleblowing is vindicated as is the tireless work of Big Brother Watch and our allies in this pursuit of justice. Mr Snowden clearly deserves the protection of democratic nations across Europe for his selfless defence of human rights.”
Carlo added: “Mass surveillance damages democracies under the cloak of defending them, and we welcome the Court’s acknowledgement of this. As one judge put it, we are at great risk of living in an electronic “Big Brother” in Europe.
“We welcome the judgment that the UK’s surveillance regime was unlawful, but the missed opportunity for the Court to prescribe clearer limitations and safeguards mean that risk is current and real.”
A landmark ruling
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 Snowden’s revelations.
However, the campaign groups argued that the judgment did not go far enough in declaring the mass surveillance practices unlawful, pushing the case up to the Grand Chamber.
The Grand Chamber judgment elaborated on the need for “end-to-end safeguards” throughout surveillance practices to respect fundamental rights.
As such, this judgment means that bulk surveillance in the UK and across Europe will require prior independent or judicial authorisation, checking for adequate end-to-end safeguards from the initial collection of data to the selection of items for storage.
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According to the UK Government, 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”.
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 (IPA). The IPA is now subject to a legal challenge by human rights group Liberty.
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”.
The campaign groups argued that mass interception is unlawful, as it cannot be considered necessary or proportionate in a democratic society and “treats everyone as under suspicion”.
Jim Killock, Executive Director of Open Rights Group said: “The Court has recognised that bulk interception is an especially intrusive power, and that ‘end-to-end safeguards’ are needed to ensure abuse does not occur.
“The court has set out clear criteria for assessing future bulk interception regimes, but we believe these will need to be developed into harder red lines in future judgments, if bulk interception is not to be abused.
“As the court sets out, bulk interception powers are a great power, secretive in nature, and hard to keep in check. We are far from confident that today’s bulk interception is sufficiently safeguarded, while the technical capacities continue to deepen.
“GCHQ continues to share technology platforms and raw data with the USA. This judgment is an important step on a long journey.”