THE interception of online communications by GCHQ has been found to be unlawful according to the European Court of Human Rights.

The court’s grand chamber ruled there were deficiencies in the bulk interception regime used by the British spy agencies and that it broke privacy rules and contained insufficient protection for confidential journalistic material.

They did however confirm that the decision to operate the scheme was not unlawful and did not violate the European Convention on Human Rights – nor was the regime for sharing sensitive intelligence with foreign governments found to be illegal.

The case first came about following the Edward Snowden revelations, which saw the mass surveillance techniques used in the UK and USA brought to light. It centred on complaints about powers given to security services under the Regulation of Investigatory Powers Act 2000 – which has been replaced by the Investigatory Powers Act 2016.

The judgement ruled that Article 8 and Article 10 of the European Convention on Human Rights had been violated. These cover the rights to have private life and communications respected and freedom of expression respectively.

Three fundamental deficiencies were found in the methods used:

  • The bulk interception had been authorised by the secretary of state and not an independent body.
  • That categories of search terms defining the kinds of communications that would become liable for examination has not been included in the application for a warrant.
  • That search terms linked to an individual – such as specific identifiers like an email address – had not been subject to prior internal authorisation.

The judgement acknowledged that “owing to the multitude of threats states face in modern society,” these kind of regimes were not illegal, but that they had to be subject to “end-to-end safeguards.”

MORE NEWS:

Jim Killock, executive director of the Open Rights Group – one of the organisations who took part in the legal challenge, said: “The court has set out clear criteria for assessing future bulk interception regimes, but we believe these will need to be developed into harder red lines in future judgements if bulk interception is not to be abused.

“As the court sets out, bulk interception powers are a great power, secretive in nature, and hard to keep in check.

“We are far from confident that today’s bulk interception is sufficiently safeguarded, while the technical capacities continue to deepen. GCHQ continues to share technology platforms and raw data with the USA.

“This judgement is an important step on a long journey.”

A spokesperson for the UK Government said: “The UK has one of the most robust and transparent oversight regimes for the protection of personal data and privacy anywhere in the world.

“This unprecedented transparency sets a new international benchmark for how the law can protect both privacy and security whilst continuing to respond dynamically to an evolving threat picture.

“The 2016 Investigatory Powers Act has already replaced large parts of the 2000 Regulation of Investigatory Powers Act that was the subject of this challenge. We note today’s judgement.”