Published: Fri, September 14, 2018
Worldwide | By Isabel Fisher

EU Court: British mass surveillance program violated human rights law

EU Court: British mass surveillance program violated human rights law

The UK government breached human rights rules by failing to ensure proper oversight of its mass surveillance programmes, according to the European Court of Human Rights.

The landmark judgment marks the court's first ruling on United Kingdom mass surveillance programmes including bulk interception of communications, intelligence-sharing with foreign governments and obtaining of data from service providers.

The court is not a European Union institution and is instead part of the Council of Europe, a 47-member state organisation based in Strasbourg, which Britain is not leaving after Brexit.

The court gave Britain, which is in the process of altering legislation on an issue publicly exposed by US whistleblower Edward Snowden, three months to decide whether to request an appeal hearing after Thursday's ruling.

The GCHQ programme was revealed by American whistle-blower Edward Snowden, a former National Security Agency (NSA) operative, as part of his sensational leaks on U.S. spying.

Documents outed by the NSA whistleblower revealed that GCHQ was conducting "population-scale" interception through the use of three programmes: 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"; and Black Hole, a repository of over one trillion events including internet histories, email and instant messenger records, search engine queries and social media activity.

"In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse", the court added.

"The related communications data, on the other hand, could reveal the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted".

On the second point, the court noted particular concern about the way in which the government could search and examine this related data - the who, when and where of a communication - "apparently without restriction". A government spokesperson told The Independent it "will give careful consideration to the Court's findings".

In 2016, Parliament passed the Investigatory Powers Act in a massive overhaul of surveillance law. "There must be a public interest which overrides the vital right to journalistic free speech before officials can scrutinise such material". Today, the Court has ruled the UK's surveillance illegal, despite arguments that the Regulation of Investigatory Powers Act 2000 (RIPA) and its replacement the Investigatory Powers Act 2016 (IPA) made it legal.

In a statement, Big Brother Watch director Silkie Carlo called the decision a "landmark ruling", while warning of the dangers posed by the incoming IPA.

"This includes the introduction of a "double lock" which requires warrants for the use of these powers to be authorized by a Secretary of State and approved by a judge".

"We will push on with our High Court challenge against the Investigatory Powers Act and I'm sure we'll draw on the judgement of today to explain why it means that act is also unlawful", she added.

Lord David Anderson QC, the former independent terror laws watchdog, said that judgement was "enormously important" because the court had backed the use of bulk interception powers that had so anxious Edward Snowden.

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