Analysis Of The Ecthr Judgment Inwards Big Blood Brother Watch: Purpose 1

Lorna Woods, Professor of Internet Law, University of Essex

This sleeping accommodation judgment is the latest inwards a line of cases that bargain amongst subway surveillance, a topic which seems to live on appearing increasingly often inwards a post-Snowden world. This judgment is substantial (over 200 pages inwards length) together with deals amongst 3 cases challenging the UK’s at nowadays mainly repealed Regulation of Investigatory Powers Act 2000 (RIPA) every bit regards to interception of communications inwards bulk, the acquisition of communications information together with the sharing of intercepted communications together with communications information betwixt the UK together with the USA of America: Big Brother Watch (app no. 58170/13), Bureau of Investigative Journalism together with Alice Ross (app no. 62322/14) together with 10 Human Rights Organisations (app. no. 24960/15).  It follows inwards the steps of the Liberty instance (app no. 58243/00) against the previous regime and, given the similarity betwixt but about aspects of second comments on the judgment. Given the size of the judgment that volition live on but an initial reaction to the judgment – in that location will, no doubt, live on much to a greater extent than to live on said.

Factual Background

The applicants inwards the 3 cases are organisations together with individuals who are either journalists or are active inwards campaigning on civil liberties issues. Their challenges to RIPA were triggered past times the information revealed past times Edward Snowden which made apparent the beingness of surveillance together with intelligence sharing programmes operated past times the intelligence services of the USA together with the United Kingdom.  Specifically, they believed that the nature of their activities meant that their electronic communications and/or communications information were probable to have got been intercepted or obtained past times the UK intelligence services relying on the regime found inwards RIPA.  Three areas of problems were highlighted:

-          bulk interception of ‘external’ communications nether s. 8(4), every bit good every bit connected communications data;

-          the sharing physical care for whereby the British agencies received information collected past times the US; and

-          access to communications information nether Part II RIPA.

In all instances the applicants idea that the protection against abuse were insufficient together with that the regimes were neither lawful nor necessary inwards a democratic society.

Only the applicants inwards the 3rd instance brought an activeness earlier the Investigatory Powers Tribunal (IPT), alleging violations of Articles 8, 10 together with fourteen of the Convention.  Although the IPT found ii ‘technical violations’ of the Convention, inwards the primary it regarded the challenged regime to live on inwards accordance amongst the requirements of Article 8, notably the requirements laid upwardly downward inwards Weber together with Saravia (app no. 54934/00).

Judgment

The get number concerned exhaustion of domestic remedies, inwards particular the failure to select a instance earlier the IPT.  The applicants argued that inwards the lite of the ECtHR’s ain ruling inwards Kennedy (app no. 26839/05), the IPT would non live on an effective remedy together with they were hence non obliged so to do.  The Court agreed amongst this assessment of its instance police inwards full general terms, but at nowadays idea that recent exercise showed that the IPT at nowadays constituted a feasible road for a remedy, especially given the reply of the UK regime to its findings. Nonetheless, the Court accepted that, at the fourth dimension the applicants inwards the assemble with minute of the joined cases introduced their applications, they could non live on faulted for having relied on Kennedy every bit ascendance for the proffer that the IPT was non an effective remedy for a electrical load nigh the full general Convention compliance of a surveillance regime. It hence found that in that location existed special circumstances absolving those applicants from the requirement that they get select their complaints to the IPT.

The Court get considered the position nether s. 8(4) RIPA together with whether it met the tests of legitimate purpose, lawful together with necessary inwards a democratic society. In doing so, it noted that in that location was jurisprudence inwards this land but that inwards previous jurisprudence the Court had distinguished betwixt dissimilar types of subway surveillance, finding that in that location dissimilar levels of intrusion depending on the information collected, together with also dissimilar rules depending on whether national safety was inwards issue.  The Court sought to synthesise the principles, suggesting that the six principles established inwards Weber – to ensure the lawfulness of whatsoever such regime - were the starting point, though they mightiness demand to live on differently applied depending on the type of surveillance. These demand non live on updated to select line of piece of employment organisation human relationship of changes inwards technology.  These minima are:

-          the nature of offences which mightiness give ascension to an interception order;

-          definition of the categories of people liable to have got their communications intercepted;

-          a bound on the duration of interception;

-          the physical care for to live on followed for examining, using together with storing the information obtained;

-          the precautions to live on taken when communicating the information to other parties; together with

-          the circumstances inwards which intercepted information may or must live on erased or destroyed.

In the context of national safety it also recognised the gloss added past times the Grand Chamber inwards Zakharov (app no. 47143/06) the review mechanisms together with remedies should also live on taken into account. The Court noted that the nature of subway surveillance was such that until an private were to live on notified nigh such surveillance, that private would non live on inwards a position to exercise their rights. In this, the safeguards against abuse assumed high importance; moreover, the role or rights to remedies was of import for protection after notification.

Looking at the province of affairs inwards issue, the Court started past times making the full general indicate that operating a volume interception scheme was non inwards itself inwards violation of the Convention. Governments would have got “a broad margin of appreciation” inwards deciding what form of surveillance scheme was necessary to protect national security.  The functioning of the scheme would soundless even so demand to live on checked to ensure that in that location were sufficient safeguards against abuse.  The applicants argued that the fact that in that location was no requirement for prior judicial authorization was a fatal flaw inwards the scheme. 

The Court agreed judicial authorisation was an of import safeguard, mayhap fifty-fifty “best practice”, but past times itself it was neither necessary nor sufficient to ensure compliance amongst Article 8. It was unnecessary because of the ex post controls available inwards the British system. Looking to Zakharov, the Court recognised that a formal requirement was insufficient – the requirement in that location had non prevented bad practice. The Court so held that regard had to live on had to the actual functioning of the scheme of interception, including the checks together with balances on the exercise of power, together with the beingness or absence of whatsoever show of actual abuse.

In assessing the scheme the Court took the police at the fourth dimension of its consideration of the claims; this meant that the Court considered the affair after the touching of the Snowden leak together with but about of the consequent changes to practice, including revisions to relevant codes accompanying RIPA, every bit good every bit statements inwards Parliament (such every bit the clarification every bit to what an external communication was – it includes Google searches, tweets together with Facebook posts from past times users inwards the UK). 

The Court took the see that, every bit regards the get Weber requirement, the police was clear every bit to the circumstances inwards which together with the atmospheric condition on which a department 8(4) warrant mightiness live on issued. There was no show to propose that the Secretary of State was authorising warrants without due together with proper consideration. The authorisation physical care for was dependent area to independent oversight together with the IPT had extensive jurisdiction to examine whatsoever electrical load of unlawful interception. Following its analysis inwards Kennedy, the Court accepted that the provisions on the duration together with renewal of interception warrants, the provisions relating to the storing, accessing, examining together with using intercepted data, the provisions on the physical care for to live on followed for communicating the intercepted information to other parties together with the provisions on the erasure together with devastation of intercept fabric provided adequate safeguards against abuse.

There were but about weaknesses inwards the system.  While inwards the see of the Court the selectors (e.g. electronic mail address) together with search criteria used to narrow downward the mass of information collected to that which would live on read past times analysts did non demand to live on made populace or live on listed inwards the warrant ordering interception, the selection of search criteria together with selectors should live on dependent area to independent oversight (para 387); indeed the Court expressed but about concerned nigh the cables (‘bearers’) selected for tapping. Here the ex post review past times the Interception of Communications Commissioner (now replaced nether the IPA past times the Investigatory Powers Commissioner) and, should an application live on made to it, the IPT were held non to live on ‘sufficiently robust to supply adequate guarantees against abuse’ (para 347).

The Court also expressed concern nigh communications data.  This is often summarised every bit who, where, when but this underplays the significance of the information collected.  Indeed, hither the Court rejected the Government’s declaration that communications information was necessarily less sensitive than the content of the communications (para 357). The Court explained the position thus:

... the content of an electronic communication mightiness live on encrypted and, fifty-fifty if it were decrypted, mightiness non reveal anything of banknote nigh the sender or recipient. The related communications data, on the other hand, could reveal the identities together with geographic location of the sender together with recipient together with the equipment through which the communication was transmitted. In bulk, the marker of intrusion is magnified, since the patterns that volition emerge could live on capable of epitome an intimate motion epitome of a soul through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, together with insight into who a soul interacted with. (para 356)

In the context of s 8(4), communications information associated amongst the communications intercepted is also covered past times the warrant but crucially but about of the limitations (e.g. that the communication must live on external) produce non apply to this data.  The Court concluded that the unjustified lower flat of protection meant that in that location was a violation inwards this regard.

The Court so considered the information sharing arrangements, the get fourth dimension that the Court had been asked to consider the matter. It noted to get amongst the many ways inwards which this number mightiness arise.  The interference inwards the instance had non been occasioned past times the interception of communications itself but lay inwards the receipt of the intercepted fabric together with subsequent storage, exam together with utilisation past times the intelligence services.  It confined its judgment to the specific declaration brought earlier it: the breach occasioned past times the British services receiving American intelligence.  The applicants argued that this indirect access should live on treated the same way every bit direct surveillance past times the British services.  The Court commented that:

"[a]s amongst whatsoever regime which provides for the acquisition of surveillance material, the regime for the obtaining of such fabric from unusual Governments must live on 'in accordance amongst the law'..., it must live on proportionate to the legitimate aim pursued, together with in that location must be adequate together with effective safeguards against abuse .… In particular, the procedures for supervising the ordering together with implementation of the measures inwards enquiry must live on such every bit to maintain the 'interference' to what is 'necessary inwards a democratic society'" (para 422).

The Court also recognised the danger of States using intelligence sharing every bit a way to circumvent controls (para 423).  It nonetheless accepted that the safeguards demand non hold off identical inwards this context every bit inwards that of direct surveillance. Applying the principles to the facts, the Court found unanimously that in that location had been no violation. In particular, it accepted that the lawful requirement had been satisfied although the footing for the information sharing was an internal understanding which were disclosed solely during proceedings earlier the IPT together with later incorporated into the Interception of Communications Code (para 426). The Code links the circumstances inwards which intelligence may live on requested to the issuing of s. 8(1) or s. 8(4) warrants, thus circumscribing the circumstances inwards which such requests may arise together with indirectly imposes supervision via sign-off past times the Secretary of State together with review past times the ISC together with the Interception of Communications Commissioner. 

The Court applied its assessment of the Code’s safeguards inwards relation to s. 8(4) warrants (in paras 361-363) here. Its assessment of the proportionality of information sharing was influenced past times the threat of international terrorism together with the global nature of terror networks necessitating information flow. In the Court’s view, ‘this “information flow” was embedded into a legislative context providing considerable safeguards against abuse’ so that ‘the resulting interference was to that which was “necessary inwards a democratic society”’ (para 446) together with it considered that the threshold laid upwardly past times the Venice Commission – that the fabric transferred should solely live on able to live on searched if all fabric requirements of a national search were fulfilled – were met (para 447). 

The side past times side number was the concluding enquiry relating to Article 8.  It concerned Chapter II of RIPA which allows specified authorities to access communications information held past times communications service providers (CSPs).  As noted, communications information is non necessarily less intrusive than content.  The Court did non even so become into particular on this here, although it noted that existent fourth dimension surveillance is to a greater extent than intrusive that the transfer of records of existing information (citing Ben Faiza (app no. 31446/12)). It re-iterated that the same 3 criteria apply: lawfulness, legitimate aim together with necessary inwards a democratic society.  The Court focussed on the lawfulness of the rules, referring to the position nether European Union police – notably Digital Rights Ireland (Case C-293/12 together with C-594/12) together with Watson (Case C-698/15) - which requires that whatsoever regime permitting access to information retained past times CSPs was solely to live on for the piece of employment of combating “serious crime”, together with that such access live on dependent area to prior review past times a courtroom or independent administrative body. RIPA -although it provided a clear footing for activeness on the human face upwardly of it - did non comply amongst this requirement together with was hence was non compliant amongst domestic police requirements (para 467).

Influenza A virus subtype H5N1 farther number arose inwards the Bureau of Investigative Journalism (BIJ) complaint. There, BIJ (a newsgathering organisation) together with a journalist (Ross) raised the number of interference amongst confidential journalistic fabric occasioned past times the functioning of both the department 8(4) together with the Chapter II regimes.  While the Court has emphasised the importance of protection of journalists’ sources, its instance police has distinguished betwixt courtroom orders for disclosure together with searches carried out past times the authorities to obtain this information – that latter is to a greater extent than intrusive. Further, the Court also distinguished betwixt attempts to reveal sources together with investigations into the committee of crimes. So the importance of source confidentiality is non an automatic trump card. The Court noted that the s. 8(4) regime was non aimed at monitoring journalists or uncovering journalistic sources.  The authorities would often solely know that a journalist’s communications had been intercepted when examining the intercepted communications. Following Weber, this inwards itself could non live on characterised every bit a especially serious interference amongst liberty of expression. Nonetheless, where those communications were selected, the concerns would increase together with safeguards would live on required, especially every bit regards the demand to protect confidentiality. In this context, concerns expressed inwards relation to the s. 8(4) regime ran through to Article 10 concerns. The Court emphasised that:

... in that location are no [public] requirements...either circumscribing the intelligence services' powerfulness to search for confidential journalistic or other fabric (for example, past times using a journalist's electronic mail address every bit a selector), or requiring analysts, inwards selecting fabric for examination, to give whatsoever particular consideration to whether such fabric is or may live on involved. (para 493)

This blanket powerfulness without whatsoever “above the water” arrangements limiting the intelligence services’ powerfulness to search together with examine such fabric constituted a violation of Article 10.

As regards the Chapter II regime, piece in that location were but about protections inwards house for journalistic sources, the Court determined that this was limited. They applied solely where the piece of employment of the application was to create upwardly one's withdraw heed a source. They would non apply inwards every instance where in that location was a asking for the communications information of a journalist, or where such collateral intrusion was likely.  Given this together with the fact that access was non limited to ‘serious crime’, the Court found a violation of Article 10.

The Court rejected complaints nether Article six every bit good every bit Article fourteen combined amongst Articles 8 together with 10 of the Convention every bit evidently ill-founded.

The judgment was non unanimous. Judge Koskelo, joined past times Judge Turkovic, disagreed amongst but about points of the reasoning of the bulk together with especially the appropriateness of relying on former instance police inwards a context next a technological ‘sea change’ inwards which people’s lives are to a greater extent than thoroughly exposed to view.  Judges Pardalos together with Eicke did non grip that the applicants inwards the assemble with minute instance should have got been absolved from the requirement to exhaust domestic remedies, nor – inwards the lite of the recent sleeping accommodation judgment inwards Centrum For Rattvisa (app no. 35252/08) – that in that location had been a violation of Article 8 inwards relation to s. 8(4) warrants.

Barnard & Peers: chapter 9

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