Big Brother Watch v. UK – Bureau of Investigative Journalism v. UK – 10 Human Rights Organizations v. UK

Background

Big Brother Watch v. UK, Bureau of Investigative Journalism v. UK, and 10 Human Rights Organizations v. UK was a set of consolidated cases before the European Court of Human Rights challenging UK intelligence activities revealed by the 2013 disclosures of Edward Snowden. On September 13, 2018, the European Court of Human Rights ruled that UK surveillance violated human rights. The case has now been referred to the Grand Chamber, a larger panel of judges.

10 Human Rights organizations v. UK is a challenge by ten human rights groups to surveillance activities of UK intelligence. Shortly after the revelations about the NSA’s surveillance program in June 2013, 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. The IPT ultimately consolidated this claims with those of domestic and international groups. The key issue before the Court was whether UK 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, the European Convention on Human Rights (ECHR) Article 8 (privacy) and Article 10 (free expression). The IPT issues three judgments. First, in December 2014 the IPT held that both PRISM sharing and the Tempora program were consistent with Article 8 of the ECHR but 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 holding the secrecy of the rules governing access to data collected were secret violated the ECHR. In a third and final judgment, the IPT found that the rights of two organizations were violated. Amnesty International surveilled communications were retained for longer than permitted, and surveillance of Legal Resources Center was not carried out in accordance with selection procedures.

The ten organizations appealed to the European Court of Human Rights, arguing the UK intelligence surveillance violated the ECHR Articles 8 (privacy) and 10 (freedom of expression), and Article 14 (non-discrimination), and that IPT proceedings violated Article 6 (right to a fair hearing).

At the European Court of Human Rights, “10 Human Rights Organizations” was consolidated with two similar challenges to UK surveillance: Big Brother Watch v. UK and Bureau of Investigative Journalism v. UK. These challenges were made directly to the European Court of Human Rights, rather than via the IPT.

The oral hearing for the case took place on November 7, 2017. During the hearing, counsel for the organizations challenging UK surveillance characterized the government’s position as “trust us and we will keep you safe.” She called for a “framework to ensure…public authorities are doing no more than is truly proportionate and are only using these very intrusive powers when they’re necessary.”

On September 13, 2018, the European Court of Human Rights ruled that UK surveillance violated human rights set out in the European Convention. The Court ruled that the UK surveillance system violated Article 8, the right to privacy, because there were “inadequate” safeguards for selecting the data subject to surveillance. The Court also said “all interception regimes…have the potential to be abused,” and that bulk surveillance include safeguards “to be sufficiently foreseeable to minimise the risk of abuses of power.” The Court also ruled UK surveillance violated the right of free expression because the law did not sufficiently protect confidential journalistic material.

The Grand Chamber, a larger panel of judges, agreed to hear the case again on February 4, 2019, . The Chamber only agrees to review cases raising important human rights issues. Several groups that brought the case requested referral and urged the Court to rule mass surveillance incompatible with human rights.

EPIC’s Third Party Intervention

EPIC participated as a third party intervenor 10 Human Rights Organizations v. UK. EPIC filed a brief with the European Court of Human Rights detailing U.S. intelligence authorities at the heart of the organizations’ contention that UK surveillance violates human rights law because of NSA access to communications and provision by the US Government to the UK Government’s security and intelligence agencies. In sum, EPIC’s third party intervention explained:

• 1) The National Security Agency Collects Personal Data From Around the World and Transfer That Data Without Adequate Legal Protections;
• 2) Domestic Surveillance Reforms in the U.S. Do Not Provide Meaningful Privacy Protections for Non-U.S. Persons; and
• 3) Both the U.S. and EU Member States Seek to Undermine Privacy and Data Security.

EPIC will provide updated brief in the Grand Chamber proceedings.

EPIC’s Interest

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, freedom of expression, and data protection. 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.

Legal Documents

The European Court of Human Rights

• Judgment (Sept. 13, 2018)
• Oral hearing (Nov. 7, 2017)
• Consolidated Observations of the Applicants (Sept. 29, 2017)
• Observations of the UK on Admissibility and Merits of the Application (Sept. 29, 2017)
• Further Observations of the UK (Dec. 16, 2016)
• Factual Appendix to Applicants’ Reply to UK Observations (Sept. 26, 2016)
• Applicants’ Reply to UK Observations (Sept. 26, 2016)
• UK Observations (April 18, 2016)
• EPIC’s third-party intervention (March 18, 2016)
• Statement of Facts and Questions (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)

Resources

• Theodore Christakis, A Fragmentation of EU/ECHR Law on Mass Surveillance: Initial Thoughts on the Big Brother Watch Judgment European Law Blog (Sept. 20, 2018)
• Human Rights Watch US Intelligence-Sharing Shouldn’t Sidestep Privacy Protections(Sept. 13, 2018)
• Privacy International Q&A: European Court of Human Rights Rules UK Mass Surveillance Laws Violate Rights
• Privacy International, UK mass interception law violates human rights – but the fight against mass surveillance continues
• David Meyer, Top European Court Says British Spies Broke Human Rights Rules With Their Mass Surveillance Tacticss Fotune (Sept. 13, 2018)
• Mike Masnick, European Court Of Human Rights: UK Surveillance Revealed By Snowden Violates Human Rights TechDirt (Sept. 13, 2018)
• Owen Bowcott, GCHQ data collection regime violated human rights, court rules Guardian (Sept. 13, 2018)
• Jennings Brown, Top European Court Rules UK Mass Surveillance Regime Violates Human Rights Gizmodo (Sept. 13, 2018)
• Patrick Smyth, UK surveillance safeguards inadequate, says rights court, Irish Times (Sept. 13, 2018)
• The President’s Review Group On Intelligence & Communications Technologies, Liberty And Security In A Changing World (Dec. 12, 2013)
• Asaf Lubin, Legitimizing Foreign Mass Surveillance in the European Court of Human Rights (Aug. 2, 2018)
• 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
• GCHQ, IPT rejects assertions of mass surveillance, GCHQ, 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