The European Court of Human Rights in Strasbourg has found the UK government guilty of violating the right to privacy of citizens under the European convention because the safeguards within the government’s system for bulk interception of communications were not strong enough to provide guarantees against abuse.

The Case

The case which led to the verdict, was brought against the UK government by 14 human rights groups, journalism organisations, and privacy organisations such as Amnesty International, Big Brother Watch and Liberty in the wake of the 2013 revelations by Edward Snowden, specifically that GCHQ was secretly intercepting communications traffic via fibre-optic undersea cables.

In essence, although the court, which voted by a majority of five to two votes against the UK government, accepted that police and intelligence agencies need covert surveillance powers to tackle threats, those threats do not justify spying on every citizen without adequate protections.

Three Main Points

The ruling against the UK government in this case centred on three points – firstly the regime for bulk interception of communications (under section 8(4) of RIPA), secondly the system for collection communications data (under Chapter II of RIPA), and finally the intelligence sharing programme.

The UK government was found to breach the convention on the first 2 points, but the ECHR didn’t find a legal problem with GCHQ’s regime for sharing sensitive digital intelligence with foreign governments. Also, the court decided that bulk interception with tighter safeguards was permissible.

Key Points

Some of the key points highlighted by the rulings against the UK government, in this case, are that:

• Bulk interception is not unlawful in itself, but the oversight of that apparatus was not up to scratch in this case.
• The system governing the bulk interception of communications is not capable of keeping interference to what is strictly necessary for a democratic society.
• There was concern that the government could examine the who, when and where of a communication, apparently without restriction i.e. problems with safeguards around ‘related data’. The worry is that related communications data is capable of painting an intimate picture of a person e.g. through mapping social networks, location tracking and insights into who they interacted with.
• There had been a violation of Article 10 relating to the right to freedom of expression for two of the parties (journalists), because of the lack of sufficient safeguards in respect of confidential journalist material.

Privacy Groups Triumphant

Privacy groups were clearly very pleased with the outcome. For example, the Director of Big Brother Watch is reported as saying that the judgement was a step towards protecting millions of law-abiding citizens from unjustified intrusion.

What Does This Mean For Your Business?

Like the courts, we are all aware that we face threats of terrorism, online sexual abuse and other crimes, and that advancements in technology have made it easier for terrorists and criminals to evade detection, and that surveillance is likely to be a useful technique to help protect us all, our families and our businesses.

However, we should have a right to privacy, particularly if we feel strongly that there is no reason for the government to be collecting and sharing information about us that, with the addition of related data, could identify us not just to the government but to any other parties who come into contact with that data.

The reality of 2018 is that we now live in a country where in addition to CCTV surveillance, we have the right to surveillance set in law. The UK ‘Snooper’s Charter’ / Investigatory Powers Act became law in November 2016 and was designed to extend the reach of state surveillance in Britain. The Charter requires web and phone companies (by law) to store everyone’s web browsing histories for 12 months, and also to give the police, security services and official agencies unprecedented access to that data. The Charter also means that security services and police can hack into computers and phones and collect communications data in bulk, and that judges can sign off police requests to view journalists’ call and web records.

Although businesses and many citizens prefer to operate in a safe and predictable environment, and trust governments to operate surveillance just for this purpose and with the right safeguards in place, many are not prepared to blindly accept the situation. Many people and businesses (communications companies, social media, and web companies) are uneasy with the extent of the legislation and what it forces companies to do, how necessary it is, and what effect it will have on businesses publicly known to be snooping on their customers on behalf of the state.

This latest ruling against the government won’t stop bulk surveillance or the sharing of data with intelligence partners, but many see it as a blow against a law that makes them uneasy in a time when GDPR is supposed to have given us power over what happens to our data.