European Court on Human Rights Bought Spy Agencies’ Spin on Mass Surveillance

The Strasbourg highest human rights court this week affirmed what we’ve long known, that the United Kingdom’s mass surveillance regime, which involved the indiscriminate and suspicionless interception of people’s communications, violated basic human rights to privacy and free expression. We applaud the European Court of Human Rights (ECHR) Grand Chamber, the court’s highest judicial body of the Council of Europe, for the ruling and for its strong stance demanding new safeguards to prevent privacy abuses beyond those required by the lower court in 2018.  

Yet, the landmark decision, while powerful in declaring UK mass interception powers unlawful and failing to protect journalists and employ safeguards to ensure British spy agency GCHQ wasn’t abusing its power, imprudently bought into spy agency propaganda that suspicionless interception powers must be granted to ensure national security. The Grand Chamber rejected the fact that mass surveillance is an inherently disproportionate measure and believed that any potential privacy abuses can be mitigated by “minimization and targeting” within the mass spying process. We know this doesn’t work. The Grand Chamber refused to insist that governments stop bulk interception--a mistake recognized by ECHR Judge Paulo Pinto de Albuquerque, who said in a dissenting opinion: 

For good or ill, and I believe for ill more than for good, with the present judgment the Strasbourg Court has just opened the gates for an electronic “Big Brother” in Europe.

The case at issue, Big Brother Watch and Others v. The United Kingdom, was brought in the wake of disclosures by whistleblower Edward Snowden, who confirmed that the NSA and its British counterpart GCHQ were routinely spying on hundreds of millions of innocent people around the globe. A group of more than 15 human rights organizations filed a complaint against portions of the UK's mass surveillance regime before the ECHR. In a decision in 2018, the court rejected the UK’s spying programs for violating the right to privacy and freedom of expression, but it failed to say that the UK's indiscriminate and suspicionless interception regime was inherently incompatible with the European Convention on Human Rights. EFF filed a Declaration as part of this proceeding. The court, however, acknowledged the lack of robust safeguards needed to provide adequate guarantees against abuse. The Grand Chamber’s decision this week came in an appeal to the 2018 ruling. 

The new ruling goes beyond the initial 2018 decision by requiring prior independent authorization for the mass interception of communications, which must include meaningful “end-to-end safeguards.” The Grand Chamber emphasized that there is considerable potential for mass interception powers to be abused, adversely affecting people’s rights. It warns that these powers should be subject to ongoing assessments of their necessity and proportionality at every stage of the process; to independent authorization at the outset, and to ex-post-facto oversight that should be sufficiently robust to keep the “interference” to what is “necessary” in a democratic society. Under powers given to UK security services in 2000, they only needed authorization by the Secretary of State (Home Office) for interception. The Grand Chamber ruled that lacking adequate safeguards like independent oversight, UK surveillance law did not meet the required “quality of law” standard and was incapable of keeping the “interference” to what was necessary.

But the opinion doesn’t contain all good news. We are disappointed that the Grand Chamber found that the UK had not violated the right to privacy and free expression with its regime for requesting intercepted material from foreign governments and intelligence agencies, rather than intercepting and collecting them directly. Our friends at ARTICLE19 and others argued this, and it also reflects our views: Only truly targeted surveillance constitutes a legitimate restriction on free expression and privacy, and any surveillance measure should only be authorized by a competent judicial authority that is independent and impartial.

Back on the bright side, we were happy that the Gran