Human rights organisations pursue first case at European Court of Human Rights directly challenging US and UK spying revealed by Edward Snowden

Islamabad, 10 October 2016: Privacy International, the leading global privacy rights NGO, has this week lodged submissions with the European Court of Human Rights (ECtHR) challenging both the UK Government's mass interception programme, and also its access to US mass surveillance. Together, these programmes 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 national oversight mechanisms have largely failed to reign in mass surveillance programmes since the Snowden disclosures. This case is therefore a landmark opportunity to challenge mass surveillance practices to Europe's highest international human rights court.

Privacy International originally brought a complaint to the UK Investigatory Powers Tribunal (IPT) in July 2013, in the wake of the Snowden disclosures, revealing that the UK conducts mass interception of internet traffic transiting fibre optic cables and has access to US mass surveillance on a similarly vast and unprecedented scale. The nine other human rights NGOs filed similar complaints, which were consolidated by the Tribunal.

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 February 2015, the IPT determined that the UK Government's access to US mass surveillance data was unlawful 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. Nevertheless, the IPT held that both UK bulk surveillance and UK access to US bulk surveillance were lawful in principle. The 10 human rights NGOs are challenging that finding at the European Court of Human Rights.

Domestic courts and independent oversight mechanisms have been proven limited in their ability to reign 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 governments' agencies. These failures are due in some cases to institutional deficiencies within oversight bodies, and in other cases to their geographically bounded jurisdiction.

Here lies the promise of international human rights law. The European Court of Human Rights is arguably the most authoritative human rights court in the world, and certainly one of the busiest. The Court's membership is made up of the 47 member States of the Council of Europe (CoE), which includes the 28 European Union states as well as Russia and Turkey. The Court's jurisprudence, which interprets the European Convention of Human Rights, is legally binding on all 47 of the CoE states.

But 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. Moreover, because many non-CoE states, such as the US, engage in intelligence sharing with CoE states, they will be obligated to adhere to the Court's ruling with respect to this activity. In addition, international law is developed through state practice, which thus far - in terms of bulk surveillance - has been shrouded in secrecy. This case brings to light and calls on international judges to address the how governments intercept, store, analyse and disseminate our communications and data.

Thus, the ruling of the European Court of Human Rights will play a vital role in advancing the international discourse regarding the right to privacy and mass surveillance technologies.

The UK Government is currently attempting to normalise mass surveillance through the Investigatory Powers Bill (IP Bill), which is in the final weeks of its passage through Parliament before becoming law. But neither the IP Bill, nor Parliament, nor the IPT, have so far reigned in the bulk surveillance programmes that gather the private information of masses of individuals and groups not suspected of any crime, including human rights NGOs.

Key points:

  • Privacy International, Liberty, Amnesty International, Bytes for All and 6 other human rights organisations challenge UK mass surveillance and UK access to US mass surveillance at the European Court of Human Rights 
  • National courts and oversight bodies have failed to reign in mass surveillance practices that impact millions of people
  • The European Court of Human Rights is Europe's highest international human rights court and its judgments are binding on all 47 member states of the Council of Europe
  • This case is the first case before the European Court of Human Rights to directly challenge UK and US mass surveillance revealed by the Snowden disclosures
  • UK domestic court has found that, pursuant to UK mass surveillance, human rights organisations have been placed under surveillance, but failed to challenge the UK Government on whether it can ever be lawful to surveil en masse individuals, groups and organisations not suspected of any crime