Revisiting the case of Big Brother Watch and Others v. the United Kingdom
The operation of the UK’s surveillance services, MI5, MI6, GCHQ and the Metropolitan Police Service and their interaction with human rights (“Convention rights”) have historically been obscure to safeguard the interests of national security. The specifics of policy and practices when conducting national surveillance and its interaction with the private lives citizens have only come to light since the whistleblowing of Edward Snowden in 2013, catalyzing closer scrutiny of their potential to impinge upon the democratic freedoms.
The focus of this article is one such case which, after substantive domestic litigation, questioned the legitimacy and proportionality of the UK surveillance regime before the European Court of Human Rights (“ECHR”) in late 2018. The findings of the case provide a useful overview of the ECHR’s approach to security services data harvesting practices and their interaction with privacy and freedom of speech.
The case originated from an application by a series of journalists and public interest bodies in the UK following the disclosures made by Edward Snowden of intelligence sharing practices between the UK and US. To ensure such cases, and the national security concerns they engage, are adequately balanced, the separate judicial branch the Investigatory Powers Tribunal (“IPT”), considered the case at first instance. The case concerned the interception of electronic communications by GCHQ under s.8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA”, now superseded by the Investigatory Powers Act 2016).
In doing so the case provides rare insight into the surveillance process, international standards, phone tapping methodology, and practice as well as the general approach taken to conducting bulk interception of communications.
Approval was given to appeal to the ECHR on the basis of the following processes undertaken by GCHQ, with the following areas of concern:
|SURVEILLANCE METHODOLOGY FOR THE BULK INTERCEPTION OF COMMUNICATIONS BY GCHQ UNDER RIPA|
|Selection of internet bearers to be intercepted
|LACK OF INDEPENDENT OVERSIGHT|
|Step 2||Interception of internet bearers|
|Step 3||Application of filters to initial search results||LACK OF INDEPENDENT OVERSIGHT|
|Searches of remaining material||LACK OF ADEQUATE SAFEGUARDS WHEN SEARCHES WERE CONDUCTED, PARTICULARLY FOR JOURNALISTIC MATERIAL|
|Step 5||Further reduction of material via additional searches and manual exclusion by an Analyst|
|ENTIRE PROCESS WAS TOO BROAD IN SCOPE, RESULTING IN TOO MUCH INTERFERENCE TO THOSE SUBJECT TO INTERCEPTION|
A focus on Article 8, right to a private life
There were two issues arising from the scrutiny of the bulk surveillance program that were Article 8 centric. The issue of a lack of independent oversight and nature of the entire process rendering it too broad in scope, thus collecting too many otherwise protected communications. As a result, the rights of those private individuals whose communications collected could be infringed.
The processes in place were not sufficient to ensure that interference was kept to a level as necessary in a democratic society. The breach of Article 8 was therefore due to the procedures and practices resulting in the overly broad interception of otherwise irrelevant or impermissible communications.
Also notable was the failure to account for the presence of journalistic communications, not just in relation to sources, in searched material. Such communications would have to be expressly excluded or carved out from searches to ensure complication with the right to freedom of speech under Article 10 ECHR. In the framework, there were no such protections. As such, GCHQ’s methodologies also were found to breach Article 10.
Key cases covering the bulk interception of communications at EU level
|Centrum För Rättvisa v. Sweden||A review of Swedish signals legislation, which was found to have adequate safeguards.|
|Weber and Saravia v. Germany||Considered the provisions of Germany’s G10 Act. Also set out six basic requirements for regimes to meet.|
|Liberty v. the United Kingdom||Considered previous UK regimes.|
|Ben Faiza v. France||Considered how to lawfully obtain communications from communications providers.|
|Kennedy v. the United Kingdom||Considered whether the judgments of the IPT were an effective remedy for surveillance law issues.|