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Opinion

Why the government should rethink the UK’s surveillance laws

The European Court of Human Rights has made clear that the Snoopers’ Charter is an unlawful violation of people’s rights and freedoms

Published: 26 Sep 2018

In 2013, Edward Snowden revealed that the UK government had been spying on us all, in secret, for years.

Within days, Liberty and a group of international human rights organisations were preparing their legal challenge.

Now, five years on, the European Court of Human Rights has ruled that those industrial-scale spying practices violated the public’s fundamental rights – vindicating Snowden’s courageous whistleblowing and striking a major blow to the government’s new mass surveillance regime.

This landmark judgment is a major victory for Liberty and the coalition of NGOs and journalists who have fought for years to put limits on police and intelligence agencies’ seemingly insatiable appetite for monitoring every citizen, all the time.

Liberty doesn’t contest that police and agencies need transparent, targeted, covert surveillance powers to deal with serious crime and terrorism – in fact, that’s why we campaigned for the creation of the Investigatory Powers Act in the first place.

But that is not what they have been doing.

Under the surveillance system we challenged, authorities had the power to collect information about everything we do and say online and on our phones, and everywhere we go, by tapping directly into communications channels.

The court found that this breached our privacy and free expression, and criticised the government’s disregard for our rights in failing to provide the basic safeguards needed to protect them.

Predictably, the government was quick to claim that its new surveillance law – the Investigatory Powers Act, or Snoopers’ Charter – had fixed all the problems challenged in this case.

Suspicionless surveillance

It hasn’t – far from it. The court’s ruling makes clear that the government’s continuing approach of subjecting all of us to suspicionless surveillance with entirely inadequate privacy safeguards is incompatible with a free, rights-respecting democracy.

This judgment is the first time the European Court of Human Rights has tested the system and principles of such extensive mass surveillance against human rights law. While it dealt with an old law, it sets the standards that apply to the current one.

The Investigatory Powers Act was passed in 2016, three years after Snowden’s revelations. It replicated and vastly expanded the powers of the previous surveillance regime – creating the most intrusive mass surveillance regime ever introduced in a democracy.

It lets government agencies store and search our web history, location data and records of who we call, email and text –information that paints an incredibly detailed picture of who we are, who we talk to, where we go and what we think.

It reveals our health problems, our political views, our religious beliefs, our sexual preferences, our daily habits, our every movement.

The Snoopers’ Charter allows bulk interception of our communications “to safeguard the economic wellbeing of the UK”. The European Court judgment makes clear this broad discretionary power is totally illegitimate, and can only be justified in the interests of national security.

The ruling also has severe implications for the Investigatory Powers Act’s lack of clarity and oversight. To comply with the ruling, the act needs to create more robust oversight, which must look at how “bearers” (communications channels used for data collection) are chosen and how collected data is filtered for examination.

Same safeguards

Crucially, the judgment recognises that the current practice of collecting communications data – the who, what, when and where of our communications – is as intrusive as collecting the content, and requires the same safeguards around when it is searched and examined. Those safeguards don’t exist under the Investigatory Powers Act.

Judges expressed concern about the old regime’s lack of safeguards for journalistic material and source confidentiality. Those protections are still inadequate in the new law.

On top of all this, the Investigatory Powers Act gives agencies eye-wateringly intrusive and dangerous new powers, from hacking our devices en masse to building and linking massive, population-level databases containing sensitive information on all of us – creating a data honeypot for criminals and foreign spies.

Liberty’s comprehensive challenge to the Investigatory Powers Act is well under way. In April, the High Court ruled in our favour on the first stage of the challenge, finding that the government’s practice of accessing our communications data held by companies and service providers was unlawful – and giving it until 1 November to change the law.

As that challenge continues, this judgment has dealt the government yet another blow and given us yet more evidence that protections for our rights remain entirely inadequate.

Industrial-scale surveillance of citizens can never be lawful in a free, rights-respecting democracy. How many more shattering legal defeats does the government intend to suffer before it accepts that it can – and must – give us a targeted system that protects our safety, our data security and our fundamental rights?

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