The Grand Chamber of the European Court of Human Rights has ruled that the British spy agency General Communication Headquarters’ (GCHQ) methods for bulk interception of online communications violated the right to privacy, and that the regime for collection of data was unlawful, Haroon Siddique reported in the Guardian of May 25.
Importantly, the European Court judges also found that the bulk interception regime of GCHQ breached the right to freedom of expression and contained insufficient protections for confidential journalistic material, but said that the decision to operate a bulk interception regime did not of itself violate the European convention on human rights. The Grand Chamber, the ultimate court of the ECHR, ruled at the same time that the GCHQ regime for sharing sensitive digital intelligence with foreign governments was not illegal.
The Grand Chamber judgment is the final point of a legal challenge to the GCHQ bulk interception of online communications begun in 2013 by “Big Brother Watch” and others after Edward Snowden’s whistleblowing revelations on GCHQ’s interception, processing and storing of data about millions of people’s private communications gleaned from eavesdropping.
In the May 25 ruling, which confirmed elements of a lower court’s September 2018 judgment, the court said it identified three “fundamental deficiencies” in the GCHQ procedure. They are: 1) bulk interception by the secretary of state, rather than a body independent of the executive; 2) that categories of search terms defining the kinds of communications liable to examination had not been included in the application for a warrant; and 3) that search terms linked to an individual (an identifier like an email address) had not been subject to prior internal authorization.
The judgment read: “In order to minimize 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 authorization 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.”
One of the plaintiffs in the case, titled In the case of Big Brother Watch and Others v. the United Kingdom, Liberty—founded in 9134 as the National Council for Civil Liberties—said the decision would allow its challenge to the process of the U.K. Investigatory Powers Act (IPA).
On May 27, Liberty’s attorney Megan Goulding wrote an op-ed in the Guardian: “The Court Ruling against GCHQ Is Just the Latest Battle in the Fight for Privacy.”
