The European Court of Human Rights recently issued an opinion in which the court ruled that the United Kingdom’s Government Communications Headquarters (GCHQ) spy agency had violated privacy rights. The challenge to GCHQ’s mass surveillance programs came about after the existence of them was brought to the public’s attention from documents released by NSA whistleblower Edward Snowden. The ruling from the European Court of Human Rights follows a similar ruling earlier this year from the United Kingdom’s Court of Appeals in London, which ruled that the Data Retention and Investigatory Powers Act, also known as the Snoopers Charter, was unlawful. The Snoopers Charter was the act which authorized the United Kingdom’s mass surveillance programs between 2014 and 2016.
The case was brought to the European Court of Human Rights by a group of 14 organizations, including Amnesty International, Big Brother Watch, Privacy International, and others. Several journalists also joined the human rights and privacy organizations in bringing the matter before the court. “For five long years, governments have denied that global mass surveillance violates our rights. And for five long years, we have chased them through the doors of every court. Today, we won. Don’t thank me: thank all of those who never stopped fighting,” NSA whistleblower Edward Snowden said in a tweet made after the announcement of the European Court of Human Rights new ruling.
GCHQ is the United Kingdom’s equivalent of the United States NSA, and both spy agencies are party to the UKUSA Agreement, which establishes the Five Eyes surveillance alliance between the United Kingdom, the United States, Australia, New Zealand, and Canada. The intelligence agencies of each Five Eyes member state conduct mass surveillance programs on virtually the entire internet, as well as virtually all satellite and radio transmissions, and this data is stored and shared between the five countries. One of the mass surveillance programs the European court investigated was a GCHQ program called TEMPORA.
With TEMPORA, GCHQ used fibre optic cable taps at different points of the internet backbone. It has also been reported that telephone network traffic is also being tapped through the TEMPORA mass surveillance program. The data collected through the United States NSA’s XKeyscore mass surveillance program is also fed into GCHQ’s TEMPORA program. TEMPORA is made up of two main programs, one called Mastering The Internet, or MTI, and the other called Global Telecoms Exploitation, or GTE. As early as 2009 it was reported that the government of the United Kingdom had already spent hundreds of billions of British Pounds on the Mastering The Internet program. The British government had been conducting the mass surveillance program in secret and unlawfully.
The European Court of Human Rights noted that the British government had not confirmed or denied the existence of the TEMPORA mass surveillance program. The panel of judges decided by a vote of 5 to 2 that the British government had violated the Article 8 privacy provisions of the European Convention of Human Rights. The court ruled that the British government had failed to provide safeguards to protect the privacy of individuals. While the court may accept that the British government had the right to conduct mass surveillance in the name of national security, it ruled that there must be some safeguards for privacy rights. However, the judges ruled that the British government did not violate free speech rights under Article 8 and Article 10 of the European Convention of Human Rights.
The British government has reacted to the earlier ruling from the Court of Appeals in London by passing a new version of the Snoopers Charter, called the Investigatory Powers Act. Many privacy rights activists argue that the new Snoopers Charter still does not provide the minimum safeguards to privacy that both the Court of Appeals in London and the European Court of Human Rights have ordered. It is likely there will be further legal challenges to the new Snoopers Charter, as GCHQ and the intelligence agencies of the other Five Eyes countries continue to conduct mass surveillance of internet traffic unabated.