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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Regulating Signals intelligence

Iain Cameron is professor in public international law at Uppsala University

Introduction

For European states, an important factor pushing towards better regulation of security agencies generally has been the ECHR. The work of “signals intelligence” agencies (collecting metadata and the content of electronic mail and voice communications) came to prominence following the allegations of “mass surveillance” made by former NSA-contractor Edward Snowden in 2013. Compared to law enforcement or internal security agencies, signals intelligence agencies tend to possess much more powerful computing facilities, and they thus have abilities to process and analyse vast amounts of data. Data, both content data (telephone conversations, email etc.) and metadata are collected in bulk and then analysed using selectors. The ECtHR has recently looked at the systems for regulation and control of signals intelligence operating in two states, Sweden and the UK, in the cases of Centrum för Rättvisa v. Sweden (CFR) and Big Brother Watch and others v. UK (BBW) (see blogposts for these cases here and here). Both these cases have been appealed to the Grand Chamber which held an oral hearing on 10 July 2019. A judgment is expected soon. The present blog article will look at four issues of principle at stake in the two cases, namely bulk collection, judicial authorization, notification and discrimination. In each of these issues, there is some tension between the regional (ECHR) and sub-regional (EU) human rights standards applicable to signals intelligence.

There were three basic questions in BBW: these concerned the UK rules on bulk collection, on metadata and on intelligence sharing. The majority of the Court found violations of Article 8 and Article 10 as regards the first two issues. In CFR the issue was more simply whether the Swedish signals intelligence law and practice as a whole satisfied Article 8 and the Court unanimously found that it did. Both cases involved many sub-issues, and were detailed examinations of the foreseeability, accessibility etc. of the laws, and their necessity in a democratic society (which mainly centered around the adequacy of the control systems). The Court applies eight criteria in making its assessment, developed from its case law on targeted interception, and the Weber and Saravia v. Germany case. It declined the offer to develop new or additional criteria, taking into account improvements in technology, and designed for bulk interception specifically (previously discussed by the Venice Commission). Continue reading

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