On 13 September 2018, the European Court of Human Rights (ECtHR) issued a much anticipated judgment in Big Brother Watch and others v. United Kingdom (Applications nos. 58170/13, 62322/14 and 24960/15)  ECHR 722.
This judgment, the first mass electronic surveillance case against the UK, addressed the proportionality of bulk interception of communications. This ruling comes at the end of a lengthy challenge to Britain’s spying powers, initially revealed by Edward Snowden in 2013. The ECtHR held that these rules, which provide the UK with the ability to conduct mass surveillance, violated the rights to privacy and freedom of expression.
The judgment is both long and complex, and it would not do it justice to fully summarise it here. However, in brief, the Judges made a number of key findings.
First, it was determined that Britain’s bulk interception regime violated the right to privacy afforded by Article 8 of the European Convention on Human Rights (ECHR) in light of the “absence of robust independent oversight of the selectors and search criteria used to filter intercepted communications” (-), and the freedom of expression under Article 10 ECHR. It also held that this regime was unlawful, as the interception of communications data constituted a serious breach of privacy. Finally, it ruled that the authorisation of bulk interception was incompatible with the principle of interfering only to the extent necessary in a democratic society, and that any interception programme must meet the six minimum requirements established in Weber and Saravia v. Germany, to minimise the risk of abuses of power. The crux of this was that the Regulation of Investigatory Powers Act 2000 (RIPA) permitted the security services to search ‘related communications’ data without restrictions, which was not determined to be a sufficient safeguard and therefore breached Article 8 of the Human Rights Convention. The full judgment can be read here.
Whilst no doubt a significant victory for human rights organisations, it should be noted that the judgment relied on the technologically archaic principles established over a decade ago in Weber and Saravia. The difference in the surveillance capabilities of Europe’s security services between now and then is enormous. Digital surveillance is deployed in an indiscriminate way and is bulk in nature. Therefore, individuals with no connection whatsoever to the perpetrators of terrorism and organised crime are increasingly likely to be caught by this mass interception of data. Many are likely to express frustration that the Court did not go a step further and establish principles more applicable to today’s digital mass surveillance systems.