UK intelligence group’s mass data interception violated right to privacy, court rules

The Guardian

May 25: GCHQ’s methods for bulk interception of online communications violated the right to privacy and the regime for collection of data was “not in accordance with the law”, the grand chamber of the European court of human rights has ruled.

It also found the bulk interception regime contained insufficient protections for confidential journalistic material but said the decision to operate a bulk interception regime did not of itself violate the European convention on human rights.

The chamber also concluded that GCHQ’s regime for sharing sensitive digital intelligence with foreign governments was not illegal.

The grand chamber judgment is the culmination of a legal challenge to GCHQ’s bulk interception of online communications begun in 2013 by Big Brother Watch and others after Edward Snowden’s whistleblowing revelations.

The court said it had identified three “fundamental deficiencies” in the regime. They were that bulk interception had been authorised by the secretary of state, and not by a body independent of the executive; that categories of search terms defining the kinds of communications that would become liable for examination had not been included in the application for a warrant; and that search terms linked to an individual (that is to say specific identifiers such as an email address) had not been subject to prior internal authorisation.

Its judgment stated: “In order to minimise the risk of the bulk interception power being abused, the court considers that the process must be subject to ‘end-to-end safeguards’, meaning that, at the domestic level, an assessment should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the operation are being defined; and that the operation should be subject to supervision and independent ex post facto (retrospective) review.”

In partly dissenting opinions, some of the 17 chamber judges said it had not gone far enough in its judgment.

Judge Pinto de Albuquerque said it had opened the gates for an electronic ‘Big Brother”’ in Europe.

Three other judges disagreed with the majority opinion that the regime for sharing sensitive digital intelligence with foreign governments was not illegal. They also said the court had “missed an excellent opportunity to fully uphold the importance of private life and correspondence when faced with interference in the form of mass surveillance”.

In doing so, they quoted from George Orwell’s Nineteen Eighty-Four in their dissenting opinion: “There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You have to live – did live, from habit that became instinct – in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinised.”

In 2018, the ECHR had upheld some of the complaints of Big Brother Watch and others but the parties had appealed to the court’s grand chamber, believing the judgment did not go far enough.

https://www.theguardian.com/uk-news/2021/may/25/gchqs-mass-data-sharing-violated-right-to-privacy-court-rules