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UK Mass Surveillance Is Facing a Ruling From Europe's Human Rights Court

An appeal by a group of human rights organizations will seek to overrule a December judgement by the UK court that mass surveillance is lawful.
April 10, 2015, 10:25am
Photo by George Rex

The European Court of Human Rights will soon decide whether British mass surveillance is lawful, as an alliance of human rights organizations seeks to overrule a judgement by the UK surveillance court.

A joint appeal was filed by groups including Privacy International, Amnesty, and Liberty in response to a ruling in December by the UK Investigatory Powers Tribunal (IPT), which found that mass surveillance of internet traffic going in and out of the country, and an intelligence sharing regime between the US and UK, was lawful.

Although the UK has ruled that such mass surveillance is lawful, campaigners believe it may breach Articles 8 and 10 of the European Convention on Human Rights (ECHR), which enshrine the rights to privacy and freedom of expression respectively. Privacy International and the other groups are seeking a ruling from ECHR that industrial scale mass surveillance violates human rights law.

Their appeal, which was filed last week, also follows a related ruling in February that the intelligence sharing regime between Britain and the US was unlawful for seven years until December 2014. It marked the first time the IPT has ever upheld a complaint relating to the UK's intelligence agencies since its establishment in 2000.

The tribunal said that the government's regulations breached the human rights of people in the UK, because the public was not made aware that safeguards were in place via a series of policies governing the intelligence sharing regime. The government was forced to disclose some details of the policies during the legal challenge, which revealed that Britain's intelligence agencies can request or receive access to bulk data from foreign agencies such as the NSA without a warrant.

Only summaries of the policies have ever been made public. However, the December tribunal decided that simply disclosing the fact that these safeguards existed was enough to make such mass surveillance lawful.

There is no recourse to appeal an Investigatory Powers Tribunal decision in UK law, and so the campaigners have taken their fight to the European Court of Human Rights.

The alliance of NGOs disagree with the principle that GCHQ's mass surveillance is lawful, and their joint application challenges the tribunal's conclusion that the publication of details of the safeguards has rendered it so.

The court will also be asked to consider whether the laws governing Britain's use of investigatory powers provide UK residents with better privacy protections — which would be illegal according to Article 14 of the ECHR, which outlaws unlawful discrimination.

Related: Mass internet surveillance by UK's GCHQ was unlawful after all, secretive court rules. Read more here.

"Mass surveillance is a violation of our fundamental rights," Carly Nyst, legal director of Privacy International, told VICE News in a statement. "Intercepting millions of communications every day, and secretly receiving millions more from the NSA by the back door is neither necessary nor proportionate.

"While the IPT sided with GCHQ and against the rights of millions of people, Europe's highest human rights court has a strong history of ensuring intelligence agencies are compliant with human rights law. We hope that the court continues this tradition and GCHQ is finally held accountable for its unfettered spying on the world's communications."

James Welch, legal director for Liberty, told VICE News in a statement: "The tribunal believes that there are sufficient safeguards to protect us from industrial-scale abuse of our privacy. We disagree, and hope the European court will finally make clear to our security services that they cannot operate in near complete secrecy."

Amnesty International's legal counsel Nick Williams added: "This industrial scale mass surveillance makes it increasingly difficult for organizations like Amnesty International to carry out human rights work. It is critical that we are able to seek and receive information of public interest from our confidential sources, free from government intrusion."

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