10 Human Rights Organisations v. UK
10 Human Rights Organisations v. the United Kingdom is the consolidated result of challenges by ten human rights groups to surveillance activities of the British intelligence organizations. Shortly after the revelations about the NSA's surveillance program in June 2013, the British human rights group Liberty filed a complaint with the UK's Investigatory Powers Tribunal (IPT), a specialized court charged with evaluating potential misuse of covert technology by government agencies. Another human rights group, Privacy International, filed a similar complaint with the IPT in July 2013. The IPT ultimately consolidated these claims with those of ACLU, Amnesty International, Bytes For All, and several other domestic and international groups. The key issue before the Court was whether British surveillance of communications, either under its Tempora program or by receipt of communications from the U.S. government obtained in its Prism or Upstream programs, violated Articles 8 or 10 of the European Convention on Human Rights (ECHR).
Following both public and closed-door hearings, the IPT issued its first judgment in December 2014 and held that both PRISM sharing and the Tempora program were consistent with Article 8 of the ECHR. However, as part of its first ruling, the IPT requested additional briefing on some of specific aspects of the government's programs. Based on that information, the IPT issued a second ruling in February 2015 and held that the rules governing one aspect of the GCHQ information sharing regime were not sufficiently transparent and had violated the ECHR. In the same ruling, the IPT found that the disclosures made by the government during the case were sufficient to satisfy the requirements of the ECHR. In a third judgment, the IPT found that one human rights organization was lawfully surveilled, but its intercepted communications were retained for longer than permitted by GCHQ procedures in violation of the ECHR. A second organization was also lawfully surveilled, but GCHQ’s selection procedures were not followed, violating the ECHR. Shortly thereafter, the IPT issued a letter amending its third judgment to change one of the names of the two human rights organizations.
The ten organizations petitioned for review by the European Court of Human Rights, complaining that the UK government’s potential receipt of their communications obtained via Prism or Upstream violates the ECHR Articles 8 and 10 and interception of their communications via Tempora violates the caselaw’s mandate of certain minimum safeguards. They also contend that the IPT proceedings violated their right to a fair hearing under Article 6 and that the UK statutory authorization for the Tempora program violates Article 14.
EPIC has a strong interest in protecting the human right to privacy, which includes a right to privacy in personal communications. The U.S. government's routine collection of the Internet communications of non-US persons infringes on those rights by allowing the U.S. agencies to conduct mass surveillance of communications without a warrant or without particularized suspicion. Such sweeping governmental surveillance is contrary to established international law principles on privacy and personal autonomy. EPIC has continually opposed the suspicionless collection of Internet communications, sought documentation on the legal authority for the program, petitioned the Supreme Court to halt disclosure of phone records to the NSA, and filing amicus briefs in support of other challengers. EPIC has also called for reforms to the FISA system that would enable greater transparency and oversight.
The NSA's PRISM and UPSTREAM Programs
In 2013, a series of reports unveiled the U.S. government’s PRISM and UPSTREAM surveillance programs, both carried out under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Under its PRISM program, the government compels major Internet service providers, including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple, to turn over communications. In contrast, under the UPSTREAM program, the government taps directly into the backbone of the internet - its cables and infrastructure - scanning and collecting communications passing by. The FISA Court revealed in a 2011 opinion the NSA collects over 250 million internet communications each year using these programs. The 2015 surveillance reform USA Freedom Act failed to restrict the government’s authority to collect communications under Section 702.
The European Court of Human Rights
- Applicants’ Reply to the Observations of the Government of the United Kingdom (Oct. 11, 2016)
- Organizations’ Additional Submissions on the Facts and Complaints (July 2015)
- EPIC’s third-party intervention (March 18, 2016)
- Article 19’s third-party intervention (March 2, 2016)
- Organizations' Application to the ECHR (May 20, 2015)
United Kingdom's Investigatory Powers Tribunal
- Judgment of the Investigatory Powers Tribunal, as amended (June 22, 2015)
- Judgment of the Investigatory Powers Tribunal (Feb. 6, 2015)
- Judgment of the Investigatory Powers Tribunal (Dec. 5, 2014)
- Witness Statement of Charles Blandford Farr on Behalf of GCHQ (May 16, 2014)
- Liberty's Reply to GCHQ's Open Response (Dec. 20, 2013)
- GCHQ's Open Response (Nov. 15, 2013)
- Liberty's Grounds of Claim (Jul. 19, 2013)
United Kingdom's Intelligence and Security Committee
- Liberty's evidence to the Intelligence and Security Committee's inquiry into Privacy and Security (Feb. 28, 2014)
- ISC's Statement on GCHQ's Alleged Interception of Communications under the US PRISM Programme (Jul. 17, 2013)
- Laura Donohue, Bulk Metadata Collection: Statutory And Constitutional Considerations, 37 Harv. J.L. & Pub. Pol’y 759 (2013)
- The President’s Review Group On Intelligence & Communications Technologies, Liberty And Security In A Changing World (Dec. 12, 2013)
- Bruce Schneier, Metadata Equals Surveillance, Schneier on Security (Sept. 23, 2013)
- Owen Bowcott, UK-US surveillance regime was unlawful 'for seven years', The Guardian, Feb. 6, 2015
- Owen Bowcott, UK mass surveillance laws do not breach human rights, tribunal rules, The Guardian, Dec. 5, 2014
- GCHQ, IPT rejects assertions of mass surveillance, GCHQ, Dec. 5, 2014
- James Welch, Liberty responds to Investigatory Powers Tribunal (IPT) Tempora judgment, Liberty, Dec. 5, 2014
- Aidan Booth and Adina Schwartz, Challenges in the UK to Surveillance by the NSA and GCHQ, John Jay College of Criminal Justice Center for Cybercrime Studies, Nov. 23, 2014
- Gordon Corera, Tribunal hearing legal challenge over GCHQ surveillance claims, BBC News UK, Jul. 14, 2014
- Katie Collins, Rights groups openly challenge GCHQ in court, Wired.co.uk, Feb. 14, 2014
- James Welch, Liberty issues claim against British Intelligence Services over PRISM and Tempora privacy scandal, Liberty, Jun. 25, 2013
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Communications Law and Policy
Jerry Kang and Alan Butler