Big Brother Watch v. United Kingdom

UK Mass Surveillance Requires Enhanced Safeguards

In a landmark decision on mass surveillance, the European Court of Human Rights held that the UK’s bulk interception regime violated the right to privacy for its lack of sufficient oversight and safeguards.

In 2013, former U.S. National Security Agency employee Edward Snowden leaked information that revealed that the United States and other governments use a wide range of techniques to spy on people at home and abroad. The public also learned that the UK has a mass surveillance program that allows it to acquire enormous amounts of personal information without a person’s consent or knowledge, including both the content and metadata of communications. Four NGOs brought a case to the European Court of Human Rights. The Justice Initiative has intervened in the case, arguing that such untargeted, invasive, and widespread mass surveillance seriously interferes with the right to privacy. As a result, it requires enhanced preconditions and other safeguards to ensure that it is done in accordance with the law and only when strictly necessary.

Facts

Snowden revealed that the UK uses a program called TEMPORA to enable the Government Communications Headquarters (GCHQ) to access “external” communications in bulk that pass along fibre-optic cables running between the UK and North America. The UK not only uses this data for its own purposes, but it also gives the N.S.A. access to this data. The data collected includes internet and telephone communications, such as the content of emails, Facebook entries, and website histories, as well as the metadata. This is a term used to describe data about communications, such as the time the communication was sent, or the computer network where the data was created. The UK and U.S. downplay the privacy concerns associated with metadata collection in particular, but Michael Hayden, the former director of the C.I.A. and N.S.A. has made clear that the U.S. is able to “kill people based on metadata.”

In 2012, the Guardian reported that GCHQ has attached “probes to 200 fiber-optic cables each with a capacity of 10 gigabits per second.” This, in theory, “gave GCHQ access to a flow of 21.6 petabytes in a day, equivalent to 192 times the British Library’s entire book collection."

The UK is also able to receive data gathered by the U.S. under the U.S.’s PRISM program. PRISM is a system the N.S.A. uses to gain access to the private communications of users of Microsoft, Yahoo, Google, Facebook, and several other online companies.

Four applicants brought the UK before the European Court of Human Rights: Big Brother Watch, Open Rights Group, English PEN, and Dr. Constanze Kurz. (Big Brother Watch and others v. UK). All believe they have been subject to the UK’s bulk surveillance authorities. They claim that this surveillance violates Article 8 because the legal systems that regulate those activities are not in accordance with law, necessary and proportionate, and lack required safeguards.

Open Society Justice Initiative Involvement

The Justice Initiative submitted a third-party intervention which sets out specific rules that the Court should consider when applying the right to privacy under Article 8 to the UK’s bulk interception program and its receipt of foreign intercepts. 

Arguments

The bulk interception and processing of metadata by the State interferes with the right to privacy under Article 8. This is because the interception and processing of metadata can be just as intrusive to the right to privacy as that of content-based data.

If bulk interception can ever be lawful, States must ensure that (a) the governing law is sufficiently precise, (b) the scope of the information gathered is restricted by time and geography, and (c) that information may only be gathered on the basis of reasonable suspicion and strict necessity. There must also be other safeguards that are not covered in this submission. If it is the Court’s view that these preconditions effectively strip bulk interception of its defining character, then there is good reason to regard bulk interception as per se unlawful.

In addition to the preconditions that apply to States carrying out bulk interception, safeguards must also be put in place to ensure States do not circumvent individuals’ Article 8 rights when receiving and requesting foreign State intercepts.