The European Court of Human Rights is set to rule tomorrow on privacy rights and surveillance says Elizabeth Farries.
Tomorrow will bring a landmark decision from the European Court of Human Rights on privacy rights and mass surveillance.
The Irish Council for Civil Liberties (ICCL) has joined six other members of the International Network of Civil Liberties Organisation (INCLO) to challenge the lawfulness of the British government’s mass surveillance regime.
Led by Liberty UK, INCLO is part of a coalition of NGOs awaiting the outcome in Strasbourg on the legality of British and US intelligence agencies intercepting private communications in bulk.
The case is the latest stage in a challenge to Britain’s wide-ranging surveillance powers. It builds upon previous findings by the Investigatory Powers Tribunal that South Africa-based Legal Resources Centre and Amnesty International were unlawfully spied on by British intelligence agencies.
It also challenges the tribunal ruling that these practices may comply with Britain’s human rights obligations. It argues that British surveillance practices, including hacking of computers, phones, and online devices on a massive scale, invade the privacy and rights of millions of people around the globe.
We know about these mass hackings because, in 2013, whistleblower Edward Snowden showed the world for the first time the full extent to which our governments are willing to spy on us without reasonable suspicion.
Snowden released documents revealing that state intelligence agencies intercept, store, and share our private phone and online activities with intelligence agencies overseas. By intercepting our communications, governments can easily see who we talk to, where we are going, and what interests we have, all without our knowledge and consent.
Defending against our challenge, the British state intelligence agency has rationalised this bulk interception on grounds of national security. They say the only way to identify terrorists or criminals is to collect large volumes of all our communications to later filter for specific targets.
INCLO members disagree. While there may be national benefits to international intelligence co-operation and communications interception, the industrial-scale level of spying foisted upon us by local and foreign governments are a gross intrusion upon our fundamental human rights.
Recognised under numerous instruments and treaties, including article 8 of the European Convention on Human Rights, privacy is a foundational right upon which many of our associated freedoms operate, including our freedom of speech, of assembly, and the right to an unencumbered press.
It is our collective governments’ obligation to justify privacy encroachments according to strict legal tests. The
‘nothing to hide’ argument shifts that burden onto individuals’ shoulders. It threatens central values upon which our free societies stand and paves the way for more authoritarian regimes.
Britain takes part in intelligence-sharing agreements with other states. In an effort to learn more about national intelligence agencies’ deals with each other, INCLO launched the 2017 International Intelligence Sharing Project across our countries.
Using Freedom of Information requests, we asked our governments to provide details about a practice that historically has been shielded from accountability.
Our efforts have been met thus far with disappointing yet predictable results. Our requests are ongoing, but agencies have tended to delay, reject, or not respond at all.
In our 2018 report, Unanswered Questions, we reveal ongoing: Insufficient laws governing how intelligence sharing partnerships are formed or operate; Insufficient government oversight and review of agency agreements; Insufficient transparency and access to information about these agreements.
Ireland is a key example of insufficient legislation, oversight, and transparency in relation to the international intelligence sharing agreements.
The ICCL submitted Freedom of Information requests to An Garda Síochána, the Department of Defence, and Department of Justice and Equality. All requests were denied on legislative exemptions or security grounds.
While we know from Oireachtas records that there are intelligence liaisons between our Defence Forces’ Directorate of Military Intelligence and other countries regarding matters of State security, we still know alarmingly little about the nature of those interactions.
The outcome of our challenge at the European Court of Human Rights will have global significance. Our fundamental privacy rights should protect us from government spying and require that international intelligence sharing agreements are guided by adequate laws, oversight, and transparency.
As Martha Spurrier, director of Liberty has said ‘Losing our privacy is the gateway to losing everything that keeps us free – the right to protest, to a fair trial, to practise our religion, to think and speak freely.No country that deploys industrial-scale state surveillance has ever remained a rights-respecting democracy. We now look to the court to uphold our rights where our Government has failed to do so.’
Elizabeth Farries is the Information rights project manager for INCLO and the ICCL. She is a PhD candidate and adjunct lecturer in the School of Law at Trinity College Dublin.