Guest Post on Big Brother Watch and Others v UK : Snowden’s Redemption or Pyrrhic Victory?

It's our pleasure to introduce a guest post on one of last month's key judgments on surveillance through bulk interception of data and on privacy, the Grand Chamber judgment in Big Brother Watch and Others v the United Kingdom:

Maximillian Shreeve-McGiffen, LLM student, University College London

Introduction

Upon the passage of the Investigatory Powers Act 2016 in the United Kingdom, Edward Snowden tweeted that the UK had legalised “the most extreme surveillance in the history of western democracy”. On 25 May, the European Court of Human Rights’ (ECtHR) Grand Chamber delivered a judgment in Big Brother Watch and Others v UK. It ruled that the UK’s bulk surveillance powers were incompatible with Articles 8 and 10 ECHR. Leading human rights organisations and privacy NGOs have already issued press releases stating that the judgment is an “important win for privacy and freedom for everyone in the UK and beyond”. Big Brother Watch itself tweeted that the judgment “vindicates Snowden’s whistleblowing”.

So, is this Snowden’s redemption, or are we getting ahead of ourselves? This blogpost will argue that Big Brother Watch is not an outright victory for privacy rights or campaigners, but at best a ‘Pyrrhic victory’. In my view, the judgment can be criticised (a) for normalising mass-surveillance rather than challenging it outright, and (b) for failing to require judicial supervision of the process and instead relying on the weaker constraint of ‘independent internal supervision’. This blogpost will also lament the increase in UK executive surveillance powers under the Coronavirus Act 2020, and argue that the ECtHR missed a golden opportunity to take a stand against ‘coronaveillance’. 

The Grand Chamber also delivered a judgment in Centrum för rättvisa v. Sweden, which dealt with similar issues of mass surveillance under Swedish law. For the sake of brevity, and my own knowledge of English rather than Swedish law, my comment will be limited to Big Brother Watch and Others v UK.

Facts of the case

The claimants were Big Brother Watch, a UK-based NGO campaigning for privacy rights, various human rights groups including Open Rights Group, Amnesty International and Liberty, and a privacy academic, dr. Constanze Kurz. They applied to the ECtHR to challenge the legality of GCHQ’s (the UK’s telecommunications and monitoring services intelligence agency) surveillance regime. The 2016 law allowed GCHQ to collect data indiscriminately and in bulk without being required to provide any evidence suggesting suspicion against the surveilled. Therefore, the claimants, argued that the surveillance regime compromised the Article 8 and Article 10 rights of UK internet users.

The judgment

The Grand Chamber ruled in favour of the claimants and held, to summarise the main findings, as follows: 

(1) In respect to Article 8 ECHR: the UK system both lacked an ‘independent body’ from the executive to authorise mass interception of information, and lacked “end-to-end” safeguards to ensure that any intervention with Convention rights was necessary and proportionate. There were three main issues identified by the Grand Chamber: (i) the Secretary of State - a member of the executive - authorised mass interception, rather than an independent body (ii) there was no categorisation of which ‘search terms’ could be examined, so anything could be monitored (iii) the use of ‘selectors’ (technology that identified specific individuals) had not been authorised. The Grand Chamber held these considerations led to a breach of the right to privacy laid out in Article 8, as the resulting law did not meet the “quality of law” requirement and was therefore beyond what was “necessary in a democratic society” (paras. 425-426).

(2)  In respect to Article 8 ECHR and ‘bulk surveillance’: The Grand Chamber ruled that Article 8 does not prohibit bulk interception in principle as long as it is used “to protect national security and other essential national interests against serious external threats” (para. 347). The Grand Chamber went on to endorse the earlier 2018 Chamber judgment's positive outlook on the technology, claiming that bulk interception is a “valuable means of protecting against international crime and terrorism” (para. 386). Finally, a large amount of discretion was given to individual governments – who were given license to “enjoy a wide margin of appreciation in deciding what type of interception regime is necessary” (para. 347). 

 

(3) In respect to Article 10 ECHR: the UK’s bulk interception of communications and the acquisition of data from communications service providers violated the right to freedom of expression as laid out in Article 10. This was due to the lack of safeguards in relation to confidential journalistic material. In particular, the Grand Chamber claimed that interception of ‘selectors’ or ‘search terms’ that were known to be connected to a journalist should be authorised by an impartial decision-making body to determine whether it was “justified by an overriding requirement in the public interest”. As this was not happening, and GCHQ were reading confidential journalistic material without sufficient safeguards, this was held to violate free expression (paras. 456-458).

Analysis: The Court did not go far enough

(a) The Normalisation of Bulk Surveillance

Firstly, this blogpost argues that the Grand Chamber's failure to recognise ‘bulk surveillance’ as a harm-in-itself means that Big Brother Watch and Others v UK can at best be seen as a Pyrrhic victory for the applicants. A battle has been won against a specific GCHQ policy, but alongside this a major concession has been made in favour of the state over the individual. The Grand Chamber has essentially rejected the argument, made by privacy activists, that bulk surveillance is normatively incompatible with living in a democratic, constitution-based society. Consequently, it seems unsurprising that leading human rights scholar Marko Milanovic has been quick to criticise the judgment as a “permanent normalisation of mass surveillance in human rights terms”.

It could be counter-argued that there are reasons why ‘bulk surveillance’ is necessary.  Following the philosopher John Stuart Mill’s harm principle, given that many terror attacks have been perpetrated by ‘lone-wolves’ and individuals without criminal records, it might make sense to employ bulk collection methods. This argument would suggest that more harm is done to individuals by large-scale terror attacks, than by small-scale violations of privacy. ‘Bulk collection’ allows the security services to be aware of individuals who would otherwise slip through the net. This is essentially the view of the majority of judges presiding over Big Brother Watch and Others v UK – bulk interception is a “valuable means of protecting against international crime and terrorism”.

 

This argument might have merit, if there were not still serious doubts as to the effectiveness of mass surveillance technology in protecting national security. Recent research by Michelle Cayford and Wolter Peters suggests that bulk surveillance makes no difference to the success of counter-terrorism operations. Their work, which analyses the statements of senior intelligence officers in the UK between 2006 and 2016, has found that considerations of cost tend to triumph in national security discussions – essentially, bulk surveillance is carried out because it is cheaper, not better. Marie-Helen Maras has also published a paper which claims that it makes little sense to use ‘bulk surveillance’ to prevent terror - terrorists are known for being capable of researching Western intelligence processes and bypassing them. She argues that, statistically, the use of undercover officers, informants, or agents to gather intelligence, are far more effective mechanisms.

 

Thus, it seems evident that ‘bulk surveillance’ violates the rights of the innocent without having an impact on the success of operations against the criminal. William Blackstone, one of England’s most famous judges and legal commentators, popularised the maxim that ‘it is better to let ten guilty persons escape than let one innocent suffer’. This blogpost argues that the ECtHR has failed to recognise the categorical disproportionality of bulk measures.

(b) The Need for Judicial Supervision

Secondly, this blogpost argues that the safeguards outlined by the Grand Chamber are insufficient to prevent arbitrary violations of the right to privacy. Instead of merely requiring the security services to be supervised by an ‘independent body’, the Grand Chamber should have gone further and required the process to be overseen by the judiciary. The fact is that this body would likely not be ‘independent’, as any individual possessing the requisite information to serve on it would likely be an ex-member of the security services. Following this, there is the risk of institutional biases preventing an individual’s human rights from being upheld. The joint opinion of Judges Lemmens, Vehabović and Bošnkjak emphasises this: they argue that “it is hard to imagine how a person having an organisational and, possibly, collegial connection with the requesting authority could properly assess a request in a fair and disinterested manner”. This is even more likely in oversight of intelligence services, where no tradition of oversight exists. As expressed by the partly concurring judges, “internal authorisation cannot provide for a level of protection against arbitrariness and abuse comparable to the protection offered by independent scrutiny”.

The counter-argument here is that judicial supervision would decrease the efficiency of the security services, as valuable resources which could be used in fighting crime and protecting national security, would instead be used in obtaining judicial warrants for bulk surveillance. Moreover, the security services are often acting without time on their side, and to require them to submit to judicial supervision could be characterised as needless bureaucracy and ‘red-tape’. 

However, such a counter-argument mis-characterises the presumption of innocence, and the purpose of human rights. Although we live in an age of seemingly endless and arbitrary lockdowns, the presumption should still be that people are innately free, and must be free to behave how they wish – ‘innocent until proven guilty’. This is the argument behind the partly concurring opinion: “in a democratic society, communications and related communications data of an identified individual may not be singled out and examined without that individual’s consent unless very convincing reasons exist to do so”. The opinion finishes strongly stating that if a “system designed to properly protect human rights is perceived as an unnecessary hurdle, democratic society should be put on notice”. This blogpost is in agreement with this statement, and argues that there are no “very convincing reasons” for ‘bulk surveillance’ as outlined above. If there were to be a scenario where bulk surveillance were necessary, a judge would be better placed to make the call than a member of a commission, in terms of impartiality.

The Rise of ‘Coronaveillance’ 

Finally, this blogpost argues that the Grand Chamber has erred in the judgment by failing to consider the potential for rights violations in the current response to the coronavirus pandemic. 

A relevant difference between the Grand Chamber judgment (2021) and the previous Chamber judgment (2018) is the emergence of the COVID-19 pandemic. This pandemic has resulted in a large increase in surveillance for reasons of ‘public health’. For example, the UK’s Coronavirus Act 2020 (s. 21) loosens a rule under the Investigatory Powers Act 2016, which allowed ‘urgent surveillance warrants’ without prior judicial authorisation, as long as they were approved ex-post-facto by a judicial commissioner within 3 days. Now, the period has been extended for up to 12 working days. Liberty, a leading UK-based human rights organisation, has given evidence to the UK Parliament that the Coronavirus Act 2020 marked the “secret expansion of covert surveillance under the guise of protecting public health”. 

In view of similar developments worldwide, legal scholar and privacy specialist Matthew White has coined the term ‘coronaveillance’, arguing that we may be heading for an age characterised by such pandemic-justified surveillance measures. He claims that the Coronavirus Act 2020 amendments on the IPA 2016 could be in violation of EU law. There is historical precedent for the idea that ‘coronaveillance’ could become a mainstay. Historian Yuval Noah Harari has written in the Financial Times that “many short-term emergency measures will become a fixture of life”, citing Israel’s 1948 ‘state of emergency’ temporary measures, ranging from press censorship and land confiscation, which still persist today. It is foreseeable, as long as there is the potential of a coronavirus variants, that the expansion of these bulk powers could remain, and that an age of ‘coronaveillance’ could become a fixture of life. Furthermore, as Nóra Ni Loideain argues in a chapter of Law, Policy and the Internet, developments such as the ‘Internet of Things’ and the interconnectivity of Internet-enabled systems will only increase the scope of these powers, as more things will become ‘online’.

In a previous article on the Coronavirus Act 2020, I have argued that if such bulk surveillance measures are considered ‘necessary’ in a coronavirus response, they should use the strict time limit of 30 days of the United Kingdom's Civil Contingencies Act 2004 as a legislative framework – the current indefinite scope of the Coronavirus Act 2020 is too long to allow such. 

Conclusion

In conclusion, Big Brother Watch must be seen as a missed opportunity, or at most a Pyrrhic victory. What has been won in terms of acknowledging the breaches of Articles 8 and 10 ECHR, has been lost in a judgment in which the Grand Chamber has effectively normalised mass surveillance. Additionally, the requirements imposed on the UK government are nowhere near stringent enough. Finally, the Coronavirus Act 2020, in my opinion, shows that the UK executive are keen to consolidate their ability to perform mass surveillance, and this should be condemned in the strongest terms. The Grand Chamber ruling was an opportunity to do this, which was sadly missed.