Much Ado About Mass Surveillance – the ECtHR Grand Chamber ‘Opens the Gates of an Electronic “Big Brother” in Europe’ in Big Brother Watch v UK

By Dr Eliza Watt, researcher in cyber law, lecturer in law, Middlesex University, London, UK.

On 25 May 2021 the Grand Chamber (GC) of the European Court of Human Rights (ECtHR, the Court) handed down its much-anticipated decision in Big Brother Watch and Others v the UK (Big Brother Watch). The case is of vital importance for the future of the Council of Europe (CoE) member states increasingly relying on mass surveillance regimes because it condones their overall utility as a means of fighting serious cross-border crime and terrorism. It also lays down for the first time new procedural safeguards that all CoE domestic surveillance legislation must adhere to henceforth.

Ostensibly a victory for privacy advocates, the judgment represents a salient high water mark in achieving almost exactly the opposite. This is because it acquiesces not only to the European governments’ quest for greater securitisation, but also cements divergent levels of protection from unwarranted state intrusion based on whether the intercepted material is domestic or foreign in nature, thereby setting out separate standards for targeted and bulk interception of communications. In its earlier case-law on bulk interception of communications when considering the legality of domestic surveillance measures in Roman Zakharov v Russia and Szabó and Vissy v Hungary,  the ECtHR not only challenged their compatibility with Convention rights, but also set out a stringent requirement for the existence of ‘reasonable suspicion’ against a citizen before the surveillance can be authorised. Conversely, in its 2018 Centrum för rättvisa v Sweden (Centrum) and Big Brother Watch Chamber judgements the Court embraced the utility of bulk interception of foreign communications (or strategic surveillance) proclaiming that it constitutes ‘a valuable means to achieve the legitimate aims pursued, particularly given the current threat level from both global terrorism and serious crime’ (para 386 Big Brother Watch 2018).

The purpose of this post is to discuss how the Grand Chamber’s Big Brother Watch findings impact privacy rights and in what way they contribute to the bifurcation of legal standards between domestic and foreign surveillance. To this end, it first briefly outlines the previous ECtHR stance on states’ strategic surveillance as set out in its earlier case law. It then offers a quick reminder of the 2018 Big Brother Watch and Centrum judgements to finally highlight a number of crucial aspects of the GC’s appeal in the former case.

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Big brother may continue watching you

By Judith Vermeulen (PhD Candidate, Law & Technology Research Group, Ghent University)

On 13 September 2018, more than five years after Edward Snowden revealed the existence of electronic (mass) surveillance programmes run by the intelligence services of the United States of America and the United Kingdom, the European Court of Human Rights (‘ECtHR’) found two UK data collection regimes – one of which will not be discussed here[1] – to violate Article 8 of the ECHR.[2] A third one, being part of the information sharing arrangements between these so-called “Five Eyes” countries was, on the contrary, considered to involve a justified interference with the right to respect for private life

While the long-awaited Big Brother Watch and Others v. UK judgment, which joined three actions, signifies another victory for civil liberties and privacy advocating non-profit organisations and activists – no less than 16 being the applicants in this case – some serious matters of concern remain. Continue reading

“Bulk interception of communications in Sweden meets Convention standards”: the latest addition to mass surveillance case law by the European Court of Human Rights

By Plixavra Vogiatzoglou, Legal Researcher, KU Leuven Centre for IT and IP Law (CiTiP)

On 19th June 2018, the Third Section of the Court, in its judgment in the case Centrum för Rättvisa v. Sweden, ruled that the bulk interception of communications scheme of the Foreign Intelligence of Sweden meets the Convention standards. This ruling follows verbatim the line of argumentation from previous case law on secret mass surveillance, thus reaffirming once more a high threshold for the protection of the right to private and family life. Continue reading