The European Court of Human Rights in Strasbourg will begin to hear evidence next week on behalf of ten human rights organisations and the Bureau of Investigative Journalism that the UK Government is acting unlawfully in its mass collections of communications data.
Leigh Day is representing The Bureau of Investigative Journalism in this legal challenge which starts at the ECHR on Tuesday 7th November against the secret gathering of communications, both data and content, by the Government.
Revelations by the former CIA operative Edward Snowden, revealed that a range of mass surveillance techniques were being used by the UK Government. These include a rolling buffer, known as TEMPORA, which stored the bulk data it intercepted, regardless of whether there was any ground for suspicion.
In effect, everyone’s data transmitted on the internet was stored, to enable the UK authorities to go back and review it. The Bureau of Investigative Journalism claim that this interception and storage of privileged data is unlawful as it fails to protect journalistic confidentiality and is in breach of Articles 8, the right to a private and family life, and Article 10, the freedom of expression, of the European Convention of Human Rights.
The UK Government currently claims the right to intercept and examine, in bulk, any communications that happen to traverse the UK and to store the content of those communications as well as any related communications data.
According to the submissions made to the ECHR by the Applicants, the UK Government seeks to downplay the significance of interception. In response to Big Brother Watch, another of the applicants, a Government representative stated:
“the interception of a communication as it flows through a fibre optic cable, does not entail a substantial invasion of privacy...unless that communication is selected for examination: in other words, unless a human examines it or may potentially examine it”.
However, lawyers for the applicants argue that the interception, storage and subsequent searching of individuals’ communications is not a negligible, or lesser invasion of privacy.
They claim that the interception, retention of, and repeated and sophisticated algorithmic searching of their communications and ability to combine many sources of data to draw up patterns of communication is potentially an even more substantial interference with the right to private life and consequently require tougher safeguards.
The Bureau of Investigative Journalism argue that the mass gathering of sensitive information could jeopardise investigations as journalists can no longer operate with any sense of confidentiality either before or after publication or offer any level of anonymity to their sources.
Rachel Oldroyd of the Bureau says: "A fundamental precondition to press freedom in any democratic society is journalistic confidentiality. It is vital that ECHR protect communications between sources and journalists. Without adequate restrictions the interception and mass collection of communications data by the UK government's surveillance operations such as those carried out by GCHQ restricts the operation of a free press and this has a chilling effect on whistleblowers seeking to expose wrongdoing."
Rosa Curling at Leigh Day says: “In an era of fake news and attacks on our information sources, the need for a free and unhindered press has never been greater in our society. Journalistic privacy is a fundamental precondition to any democratic society. Journalists must be able to offer their sources anonymity if they are to speak truth to power.
“We believe the Tempora and other covert programmes disclosed by Edward Snowden reveal that this key principle is currently being breached by the UK government and the government’s failure to protect journalistic confidentiality is unlawful. The current framework fails to provide adequate protection for confidential journalistic sources and journalistic material.”