Civil liberties groups take another swing at Brit snooping regime in Euro human rights court

Case referred up to the Grand Chamber

The UK's mass surveillance regime is to be ruled upon by Europe's highest human rights court after civil liberties groups pushed back against a previous decision.

A panel of five judges in the European Court of Human Rights' Grand Chamber announced today (PDF) that they had decided to hear a legal referral of a September 2018 ruling by a lower chamber of the ECtHR.

That ruling said that safeguards within the government's system for bulk interception of communication were not robust enough to provide guarantees against abuse.

However, the court did not say that carrying out bulk interception was unlawful in and of itself – but rather that oversight of it was insufficient. Neither did it rule that the sharing of information with foreign governments was in breach of the rights set out in the European Convention on Human Rights.

For the bodies making the challenge – which is actually three combined applications – this ruling didn't go far enough, and they asked for their case to be referred up to the Grand Chamber, which is the court's highest bench.

The initial applications were lodged after former NSA sysadmin Edward Snowden's 2013 revelations that GCHQ was secretly intercepting communications traffic via fibre-optic undersea cables.

They were launched by Big Brother Watch and others in 2013; the Bureau of Investigative Journalism and reporter Alice Ross in 2014; and a number of human rights organisations in 2015.

It was the first time the court had considered the UK's procedures governing bulk cable-tapping – which have since been replaced by those set out in the Investigatory Powers Act – and the first time it had ever considered intelligence-sharing programmes.

The case considered three aspects of the UK's spying laws: the regime for bulk interception of communications (under section 8(4) of RIPA, the Regulation of Investigatory Powers Act); the system for collecting communications data (under Chapter II of RIPA); and the intelligence sharing programme.

The ECtHR's lower chamber ruled that the bulk interception regime and the regime for obtaining communications data violated Articles 8 and 10 of the Convention – the rights to privacy and to free expression – but that sharing intelligence didn't violate either.

The court had also been asked to consider whether there had been violations of other parts of the convention, but found that the arguments put forward for a number of these challenges were inadmissible.

"The UK government continues to intercept enormous volumes of internet traffic flowing across its borders. And it continues to have access to similarly vast troves of information intercepted by the US government," said Caroline Wilson Palow, general counsel for one of the parties, Privacy International.

"We call on the Court to reject these mass surveillance practices and find that they are fundamentally incompatible with the rights to privacy and freedom of expression enshrined in the European Convention on Human Rights." ®

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