The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Bulk intercept of electronic communications violates right to privacy 

2 June 2021

Eight years after Edward Snowden’s revelations about the practice, the Grand Chamber in Strasbourg has handed down a final ruling on the lawfulness of bulk interception of online communications by GCHQ and other agencies, in Big Brother Watch & ors v UK. The Grand Chamber acknowledged that bulk intercept is ‘a valuable technological capacity to identify new threats in the digital domain’, and that states have a ‘legitimate need for secrecy’ about its use. They analysed it in terms of stages – intercept and initial retention, filtering, examination, and continued retention and usage – and held that Article 8 applies throughout, with the degree of interference increasing stage by stage. The safeguards in place under s.8 of RIPA, the statutory underpinning of the former bulk intercept regime, were insufficient such that that section did not meet the ‘quality of law’ requirement, meaning that it was incapable of keeping any interference to what was necessary in a democratic society. Accordingly, the Court found that there had been a breach of Article 8. Because the intercept included interception of confidential journalistic material, there had also been a breach of Article 10.

But the majority of the court held that where there were ‘end to end safeguards’, including detailed provision in domestic law for when bulk intercept may be authorised and a requirement for authorisation and supervision by an independent body, bulk intercept can be conducted in a manner which is compliant with the Convention. That finding on principle will be a relief for the Government, which will no doubt argue that the deficiencies identified have now been remedied, primarily by the Investigatory Powers Act 2016. No doubt the Grand Chamber will have to consider that argument in due course: in Liberty’s claim challenging the compatibility of IPA, which was dismissed by the High Court in July 2019, there is an outstanding application for a leapfrog appeal to the Supreme Court that was stayed pending this decision.

The court also considered whether receipt of intercept material from foreign intelligence services was compatible with the Convention, finding, by a majority, no breach of either Article 8 or 10, on the basis that there was sufficiently clear domestic law permitting requests for such material and adequate safeguards for its acquisition and handling. Again, the Government will be relieved by this finding, though civil liberties campaigners will be encouraged by the strong dissenting judgments on this issue. Overall, while this decision has been broadly heralded by campaigning groups as a victory, the finding that bulk intercept and the sharing of intercept information can in principle be compatible with the Convention may, in the long run, mean that they have lost the war.

Further reading

Big Brother Watch & ors v UK

Liberty v SSHD

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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