Privacy International and nine other human rights organizations pursue landmark case at European Court of Human Rights directly challenging UK and US mass surveillance revealed by Edward Snowden

Key points

• Privacy International, Liberty, Amnesty International, and seven other human rights organizations challenge UK mass surveillance and UK access to US mass surveillance at the European Court of Human Rights
• This is the first case before the European Court of Human Rights to directly challenge UK and US mass surveillance revealed by the Snowden disclosures
• National courts and oversight bodies have failed to rein in mass surveillance practices that impact hundreds of millions of people
• The European Court of Human Rights is Europe’s highest international human rights court and its judgments are legally binding
• While the UK’s domestic court found that human rights organizations have been placed under surveillance, it failed to challenge the UK Government on whether it can ever be lawful to surveil en masse individuals, groups and organizations not suspected of any crime

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Privacy International and nine other human rights organizations have lodged submissions with the European Court of Human Rights challenging both the UK Government’s mass interception program, and its access to US mass surveillance programs. Together, these programs violate the privacy of millions of people around the world. Our co-applicants include human rights NGOs based in the UK and abroad, including the American Civil Liberties Union, Amnesty International, Bytes for All, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, the Legal Resources Centre and Liberty. Domestic courts and oversight mechanisms have largely failed to roll back mass surveillance programs revealed by the Snowden disclosures. This case is therefore a landmark opportunity to challenge mass surveillance practices before Europe’s highest international human rights court.

Domestic courts and independent oversight mechanisms have proven limited in their ability to rein in these novel and intrusive forms of intelligence gathering in the digital age, namely bulk interception of transnational data flows, and the sharing of such data between different government agencies. These failures are due in some cases to institutional deficiencies and in other cases to the geographically bounded jurisdiction of these mechanisms.

The judgments of the European Court of Human Rights, which interprets the European Convention of Human Rights, are binding on the state whose laws are being challenged and also provide guidance for the 47 member States of the Council of Europe (CoE).

The Court’s judgments also resonate beyond the borders of the CoE, as they involve the interpretation of universal human rights, including the rights to privacy and freedom of expression. They therefore provide guidance in interpreting these rights as enshrined in other international human rights instruments, such as the International Covenant on Civil and Political Rights. A determination that UK mass surveillance and access to US mass surveillance violate the Convention would send a powerful message throughout the world that such programs are incompatible with fundamental human rights.

For far too long, mass surveillance has been shrouded in secrecy. This case brings the practice to light and calls on international human rights judges to address how governments intercept, store, analyze, and disseminate our communications and data.

Caroline Wilson Palow, General Counsel at Privacy International said:

“For years, the UK Government has been secretly intercepting enormous volumes of internet traffic flowing across its borders. At the same time, it had and still has access to similarly vast troves of information intercepted by the US Government. The UK court tasked with overseeing the UK intelligence agencies has sanctioned these bulk surveillance practices, normalizing state interception, retention, analysis and dissemination of personal communications and data at this scale. We call on the European Court of Human Rights to reject this disturbing trend by finding that bulk surveillance is incompatible with the rights to privacy and freedom of expression enshrined in the European Convention on Human Rights.”

Ashley Gorski, Staff Attorney at the ACLU National Security Project said:

“Through bulk surveillance programs, the US and UK governments intercept the private communications and data of millions of people around the world. Not only is bulk surveillance unlawful, but it has a deeply chilling and corrosive effect on political discourse and our personal communications. We are hopeful that the European Court of Human Rights will recognize that this mass surveillance violates fundamental rights to privacy and freedom of speech, and that the Court’s ruling will help put an end to these practices on a global scale.”

Janet Love, National Director of the Legal Resources Centre in South Africa, said:

“The case before the European Court of Human Rights is a key opportunity for an international standard to be set on mass surveillance. For too long, state agencies have been permitted to operate under a pernicious veil of secrecy, in a manner that has violated the rights to dignity and privacy of innumerable people across the world. As a public interest law firm, there can be no doubt that the communications of the Legal Resources Centre must necessarily be confidential. However, despite the ruling from the IPT, we are no closer to knowing which of our communications were intercepted or the reason that this occurred. The current practice of mass surveillance is neither necessary nor proportionate, and cannot be justified in open and democratic societies. This case holds the potential for the European Court to demand that state agencies behave in a more accountable manner.”

Factual Appendix to Applicants Reply to Government Observations in PDF

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Notes to Editors

Background

• The Snowden disclosures in 2013 revealed that the UK Government intercepts a significant percentage of the communications and communications data flowing through the undersea fiber optic cables landing in the UK. The Government then redirects a copy of this traffic into buffers, which store all content for three days and communications data for 30 days. It filters this information according to ‘selectors’, which remain secret, but could include descriptors as broad as a type of traffic (e.g. email, Facebook posts, Skype calls), an origin (e.g. country x) or destination of traffic (e.g. country y), or an IP address or range of IP addresses assigned to computer servers. Filtered information is stored in databases, which analysts can query, data-mine or use to call up information to examine further. The results of analysis may then be distributed to other agencies, including MI5, MI6 and the National Crime Agency.
• The Snowden disclosures further revealed that the UK Government has wide-ranging access to information intercepted in bulk by the US Government. The earliest revelations concerned a program called Upstream, which similarly taps undersea fiber optic cables landing in the US. The US also conducts a variety of other bulk surveillance programs: MYSTIC, which intercepts and stores the communications data of all mobile phone calls made to, from or within targeted countries; DISHFIRE, which intercepts and stores the content and communications data of 194 million text messages per day; CO-TRAVELLER, which intercepts and stores nearly 5 billion records a day relating to the location of mobile phones around the world; and MUSCULAR, which intercepted and extracted data directly as it transits to and from Google and Yahoo’s private data centers.
• The Snowden documents reveal that that the UK Government has access to various US bulk surveillance programs. XKEYSCORE, for example, is an NSA processing and query system, fed by internet traffic intercepted from international fiber optic cables, among other sources. It is accessible to several foreign governments, including the UK, whose analysts then query the system to pull up the private information of individuals around the world.
• Until the Snowden disclosures, the public was in the dark about UK bulk interception or access to US bulk surveillance. These programs, which constitute mass, untargeted surveillance, are fundamentally inconsistent with the rights to privacy and freedom of expression. By its very nature, bulk surveillance is designed to capture the communications of millions of individuals who are not suspected of any wrongdoing. The UK Government is not required to target the communications of any particular individual, nor must it demonstrate any suspicion that such targets have committed a criminal offense or pose a threat to national security.
• This case represents the first time the European Court of Human Rights has been called upon to directly address surveillance on this scale. The 10 human rights NGOs contend that the court should find that the UK’s bulk interception and intelligence sharing activities are fundamentally incompatible with the rights to privacy and freedom of expression guaranteed by the European Convention on Human Rights.
• While the IPT found that the UK Government had conducted unlawful surveillance of two of the human rights NGOs which are part of this challenge, it delivered ‘no determination’ judgments for the remaining eight. The ‘ no determination’ finding does not mean that the UK Government did not conduct surveillance on the remaining NGOs, only that any surveillance that was conducted was deemed lawful. Privacy International believes this case offers a unique opportunity to directly challenge such unlawful surveillance, and to shed light on how countries share their citizens’ data.

Timeline of our case against UK/US bulk interception programs

• Privacy International originally brought a complaint to the UK Investigatory Powers Tribunal (IPT) in July 2013, in the wake of the Snowden disclosures, which revealed that the UK conducts mass interception of internet traffic transiting fiber optic cables and has access to US mass surveillance on a similarly vast and unprecedented scale. The IPT is a specialized judicial body that hears complaints against surveillance by public bodies, including the British security and intelligence agencies. The nine other human rights NGOs filed similar complaints, which were consolidated by the IPT.
• Our complaints argued that the UK Government had no authority under UK law to conduct mass interception or to access the personal communications and data of millions of people via US mass surveillance programs. We also argued that these activities violate Articles 8 and 10 of the European Convention on Human Rights, which respectively protect the rights to privacy and freedom of speech.

In December 2014, the IPT held that both UK bulk surveillance and UK access to US bulk surveillance were lawful in principle. In February 2015, the IPT determined that the UK Government’s access to US mass surveillance data was unlawful prior to the proceedings because the legal framework governing such access was secret. And in June 2015, it found that the UK Government had conducted unlawful surveillance on two NGO claimants — Amnesty International and the Legal Resources Centre.