Challenging mass surveillance and protecting people’s right to privacy

Were the UK’s previous mass surveillance and international data sharing regimes compatible with Article 8 ECHR (right to privacy) and Article 10 ECHR (right to freedom of expression)? What safeguards do such bulk interception and intelligence sharing regimes require to protect human rights?

Campaign groups Big Brother Watch, English PEN, Open Rights Group and the computer science expert Dr. Constanze Kurz began a legal challenge in 2013 following revelations of the UK’s mass surveillance programme by NSA whistleblower Edward Snowden.

They alleged that they had been the subject of generic surveillance by Government Communications Headquarters (GCHQ) or that the United Kingdom security services may have been in receipt of foreign intercept material relating to their electronic communications.

They argued that these interferences were not “in accordance with the law” and that generic interception of external communications by GCHQ, is an inherently disproportionate interference with the private lives of thousands, perhaps millions, of people.

In related challenges it was also alleged that generic interception of communications data breached Article 10 ECHR, particularly in relation to the work of journalists.

The Grand Chamber had to consider the compatibility of such mass data collection and international intelligence sharing regimes with Article 8 and 10 ECHR, and the procedural safeguards they require.

Part of our remit as an A Status National Human Right Institution (NHRI) is to uphold human rights protections.

The case concerned the legality of the legal framework for bulk interception and international intelligence sharing of communications data by the UK, which also fits with our work to protect and uphold equality and human rights laws in Britain.

In April 2019, we took part in a joint intervention with other members of the European Network of National Human Rights Institutions (ENNHRI).

ENNHRI’s submissions to the Grand Chamber argued that robust independent oversight of international intelligence sharing regimes is required. 

The submission from the network’s Legal Working Group, which we are part of, gave an overview of recommendations from UN and European human rights bodies and Special Rapporteurs, as to the requirements of effective independent oversight.

At a hearing in July 2019, Big Brother Watch and others told the European Court of Human Right’s Grand Chamber that “the UK’s regime puts at risk the very values protected by the Convention that terrorism seeks to undermine”.

The Grand Chamber delivered its landmark judgment on the compatibility of the UK’s mass communications surveillance regimes with the European Convention on Human Rights on 25 May 2021.

It ruled:

• the UK’s historic bulk intercept intelligence regimes breached Article 8 and 10 ECHR
• The UK’s receipt of intelligence from foreign intelligence services did not violate Article 8

The challenge by Big Brother Watch and other organisations was  significant because the Grand Chamber decision will help to clarify the procedural safeguards that the Convention requires to protect democracies from the increasing surveillance that technology enables.

The outcome of this challenge not only affects people in Britain but sets out principles of privacy protection for individuals from un-targeted surveillance across Europe.

The Court emphasised the importance of ‘end-to-end-safeguards’ to minimise the risk of bulk interception powers being abused. 

Fundamental safeguards of any Article 8 compliant bulk interception regime will now require assessment of ‘necessity’ and ‘proportionality’ at each stage of the process, independent authorisation at the outset when the object and scope of the operation are being defined, and supervision and independent ex post facto review (see paras 350 to 361 of the judgment).

Alastair Pringle, Interim Chief Executive at the Equality and Human Rights Commission said: “Governments have a duty to protect the safety of their citizens. While we can all accept a level of intelligence gathering should exist for that reason, appropriate safeguards must be in place to protect our privacy and freedom of expression. As digital footprints grow and technologies that enable mass interception of personal data develop, our laws and safeguards should continue to adapt at the same pace.”