Six years after the Snowden revelations, the fight against bulk surveillance continues
The High Court of England and Wales recently ruled that the UK Snoopers’ Charter was compatible with rights to privacy and freedom of expression. This judgment allows the UK Government to continue to spy on people, in the UK and abroad, regardless of suspicion. Ordinary people will have their sensitive communications and data swept up and stored under wide-ranging state powers to spy en masse.
Liberty, the UK human rights organisation that brought the challenge, will appeal the judgment in the courts and will keep fighting for a targeted surveillance regime that respects people’s fundamental rights.
The People vs Snoopers’ Charter
The Investigatory Powers Act (the latest iteration of the Snoopers’ Charter) became law in late 2016. It purported to introduce transparency to state surveillance following Edward Snowden’s revelations of unlawful mass monitoring of the public’s communications.
A petition calling for its repeal attracted more than 200,000 signatures, but it was still not debated by Parliament. The judgment handed down by the High Court of England and Wales on 29 July 2019 was the latest step in Liberty’s historic legal challenge to mass surveillance powers under the Snoopers’ Charter. This legal challenge has been taken in two separate tranches.
The first tranche resulted in the High Court handing down a decision in April 2018 that found that the legislation failed to protect people’s rights in relation to the state’s accessing of their communications data. Specifically, the Court found that it was unlawful for the state agencies to be able to access people’s data held by telecommunications operators without prior independent authorisation, and that agencies should not be able to access such data for the purposes of investigating non-serious crime. The UK Government was ordered to change the law to correct these defaults and has now introduced a new body called the Office for Communications Data Authorisations (OCDA) which will authorise state access to data held by telecommunications operators.
The second tranche of the litigation focused on the illegality of “bulk” powers, including bulk interception, bulk hacking, bulk acquisition of data, and the creation of “bulk personal datasets”. It was the world’s first legal challenge to powers allowing state agencies to hack people’s information under bulk warrants.
At the hearing in June 2019, Liberty argued that the bulk powers contained in the Investigatory Powers Act 2016 breach Article 8 (the right to privacy) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights.
Liberty further argued that there are insufficient safeguards in the Act to protect confidential journalistic sources and legally privileged material.
MI5’s unlawful data retention
A week before the hearing in June, as a result of Liberty’s litigation, it was revealed in court that MI5 (the UK’s Security Service) has for many years been unlawfully retaining and mishandling people’s data obtained under the bulk powers Liberty was challenging. This included mishandling sensitive legally privileged material (i.e. confidential communications between a lawyer and their client). It was only because of Liberty’s case, and the Government’s duty to report relevant issues to the Court, that the Government admitted what it knew about MI5 unlawful conduct. Though the Government is still keeping the exact details of the unlawful conduct secret, it has been forced into publicly revealing certain details as a result of Liberty insisting that it do so in court.
The Investigatory Powers Commissioner (the head of the UK oversight body for surveillance) said the breach was severe enough that he considers MI5’s handling of data to be in “special measures”, drawing an analogy to the “special measures” status that is given to schools in the UK when they are failing and require urgent remedial action. However, the Commission did not elaborate on what this designation means for MI5’s surveillance powers. Nevertheless, MI5’s startling admission in the documents revealed in court that people’s data is being held in “ungoverned spaces” shows that the Act’s safeguards, and its oversight system, are wholly inadequate for protecting people’s fundamental rights.
This inadequacy goes to the heart of Liberty’s challenge. Liberty’s case is that the safeguards in the Investigatory Powers Act 2016 fail to protect people’s privacy and free expression. The MI5 disclosures prove that. So inadequate are the safeguards that they can fail to be enforced for years without it being discovered by the oversight body, Government or public.
Pushing forward the fight against mass surveillance
In September 2018, Liberty, along with 13 other human rights and journalism groups and two individuals, won its challenge to the previous Snoopers’ Charter (the Regulation of Investigatory Powers Act 2000) at the European Court of Human Rights. The Court found that the UK’s previous regime for bulk interception was unlawful.
Liberty and the other Applicants appealed this judgment to the Grand Chamber of the European Court and were in Court in July, seeking an even firmer ruling that bulk surveillance powers inherently violate people’s rights.
The Investigatory Powers Act 2016 replicated and expanded the intrusive surveillance powers that the European Court has already found to breach people’s rights to privacy and free expression.
We will appeal the High Court’s July judgment, and will keep fighting until the UK Government gives people a targeted surveillance regime that does not demand they throw away their rights.
About the author: Megan Goulding is a solicitor at the UK human rights campaigning organisation, Liberty. Megan specialises in privacy, technology and human rights and runs Liberty’s litigation in this area.