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UK’s Surveillance Regime in Breach of European Convention on Human Rights

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In a previous editions of Cassandra Voices we discussed the Russian surveillance system, called SORM, and the far-reaching data privacy impact it may have vis-à-vis private individuals and communication service providers.

Russia is not the only state struggling to strike a balance between national security concerns that often mandate extensive surveillance measures, and the right to data privacy of its citizens. Recently, the approach employed by the UK in this area, specifically, the Regulation of Investigatory Powers Act 2000 that provides a legislative basis for governmental surveillance, was subjected to the scrutiny of the European Court of Human Rights (‘ECHR’) in Strasburg.

In particular, in the case of Big Brother Watch and Others v. the United Kingdom the ECtHR had a chance to opine on the legality of the UK bulk interception regime, its intelligence sharing policy with foreign governments, and the manner in which it may collect data from communications services providers.

Concerns around the UK government surveillance techniques were triggered following Edward Snowden’s allegations about the British Government Communications Headquarters’ (‘GCHQ’) surveillance protocols being even more extensive than the equivalent powers resorted to by the US government. Specifically, Snowden referred to the GCHQ-driven operation codenamed ‘TEMPORA’, which has supposedly facilitated tapping and storing of an unprecedented amount of data about private citizens in the UK. The British government has since neither confirmed nor denied the existence of such an operation.

The issue has been subsequently picked up by civil rights activists, journalists and non-governmental organizations, including Big Brother Watch, Transparency International, Privacy International, Bureau of Investigative Journalism, Open Rights Group etc., with the ECHR passing final judgment on September 13th, 2018.

By five votes to two the ECHR judges ruled that the bulk interception regime adopted by the UK violated Article 8 of the European Convention on Human Rights (‘ECHR’), specifically a right of respect for private and family life/communications, in the absence of sufficient safeguards to prevent abuse. The Court noted that while the bulk interception techniques themselves did not constitute a breach of Article 8, the failure to secure adequate safeguards did.

The Court also held, by six votes to one, that the approach for collecting data from communications service providers breached Article 8, and that both the bulk interception regime and the regime for obtaining data from communications service providers violated Article 10 – the right to freedom of expression and information – of the ECHR, again, due to an absence of safeguards to prevent the abuse of systems, guaranteeing an appropriate level of confidentiality.

Notably, the UK regime for sharing intelligence with foreign governments was found to be in compliance with Articles 8 and 10.

It should be noted that the Court issued its judgement in the context of the Regulation of Investigatory Powers Act 2000 that currently forms a legal basis for surveillance activities pursued by the government in the UK. The Investigatory Powers Act 2016 is a new piece of legislation that was supposed to come into force after the allegations have been made and, therefore, fell outside of the scope of the present case. Once fully in force, this Act is expected to heavily amend the existing regimes with the recent ECHR judgement, hopefully, a timely guidance for this purpose.

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