On Tuesday, human rights organisations including the Irish Council of Civil Liberties brought a major challenge against the lawfulness of the UK government’s mass digital surveillance regime.
They argued at the European Court of Human Rights that the UK government’s ability to access people’s private communications data, without their knowledge or consent, is unlawful.
When we think about governments listening in on our private communications we have historically been concerned with them tapping our phones.
Growing in the public awareness is how governments are also looking at our digital communications ‘data’.
Data is an information source that can reveal private details about many aspects of our lives. Data shows who we are calling, when, and for how long.
It shows where we are, our names, addresses, and phone numbers. Data can also show who we were talking to and about what.
Currently, the UK government can track private conversations with friends, family, loved ones, medical professionals, and colleagues.
The UK government searches this data indiscriminately and in bulk. They do it without citizens’ knowledge or consent. This practice is mass surveillance.
The UK government has argued that there is legitimate reason to look at
this data to protect against crimes or possible threats to the state.
However, it accesses data even if there is no clear connection to suspected crimes. Just as the police can’t search your house without reasonable cause, they should also not be able to search your private communications.
The ability to watch our private communications en masse without a specific and proportionate reason is therefore unlawful.
Without a clear connection to risks of crime, mass surveillance undermines our rights to freedom of privacy and to freedom of expression.
This is not the first time ICCL has challenged the UK’s surveillance systems. In 1999, British intelligence agencies were exposed for intercepting all telephone, email, and data communications between Britain and Ireland.
It had been intercepting communications for seven years, included legally privileged and confidential information.
In 2005, the ICCL joined with Liberty and British-Irish Rights Watch to bring a court challenge, also at the European Court of Human Rights, against this massive data ‘fishing expedition’.
The Strasbourg court found the UK government had breached the privacy of communications between it organisations.
It ruled that the government surveillance did not protect the applicants’ rights to privacy “in accordance with the law”.
Almost 10 years later, the present case concerns the existence of digital surveillance programs that are now far more extensive and powerful. Edward Snowden revealed, through released documents in 2013, that governments across the world are using ever-refined technology and software to collect our private communications in bulk.
The UK has intercepted and stored all communications entering and leaving the country via fibre-optic cables. They have the capacity to store it and sift through it for specific details.
Here in Ireland, fibre-optic cables have also been intercepted, according to documents released by Snowden. The documents show specifically how the framework of cables connecting Ireland to digital information beyond its borders are being tapped by the UK government.
In addition to everyday citizens, the UK government is also watching human rights organisations aligned with the ICCL.
In particular, we now know that the UK Government Communications Headquarters has monitored the South African Legal Resources Centre, a rights group connected with the ICCL through the International Network of Civil Law Organisations.
INCLO comprises 13 independent national human rights organisations including the ICCL in the global north and south. It advocates for higher international standards of protection of informational privacy rights.
Several INCLO members have also joined Tuesday’s court challenge against the UK’s international surveillance regime, including the Legal Resource Centre, Liberty, the American Civil Liberties Union, the Egyptian Initiative for Personal Rights, and the Canadian Civil Liberties Association.
Apart from litigation, these INCLO members are fighting internationally for privacy rights, as the following individual stories of INCLO member nations reveal.
In India, journalists exposing government surveillance of opposition politician have become surveillance target themselves.
In Hungary, the residents of multiethnic neighbourhoods in Budapest have been subjected to facial- recognition software in CCTV cameras in the name of state security.
Security initiatives have also encroached on privacy rights in Israel, where state security agents have interviewed peaceful political activists for ‘warning conversations’, which have revealed that the political activist’s lives and communications are being monitored.
Similarly, in Russia, respected human rights advocates have learned, after repeated detentions, that they have been listed in a ‘human rights activists’ section of the national surveillance database.
This level of interference with journalists, minority groups, political activists, and human rights groups via digital surveillance is unprecedented on a global scale.
Through access to our digital data, governments can now easily see where we’re going, who we’re talking to, and what interests we have. All without our knowledge or consent.
The eventual judgment from the Strasbourg court on the UK’s surveillance tactics will have global implications.
Nick Williams, a senior lawyer with Amnesty International, says: “This case concerns the UK, but its significance is global. It’s a watershed moment for people’s privacy and freedom of expression across the world.”
As Martha Spurrier, Liberty’s director has written of the mass surveillance: “No democratic state has ever deployed it against its citizens and human rights advocates and remained a rights-respecting democracy.”
We at the ICCL and our international human rights colleagues understand that it is necessary to work together to safeguard privacy rights on a global scale.
We will continue to fight, at the European Courts and elsewhere, against these encroachments on our privacy and the erosion of our hard-earned democratic rights via government programmes of mass digital surveillance.
Elizabeth Farries is the information rights programme manager for the ICCL and INCLO. She is a PhD candidate studying digital privacy rights and cybermisogyny at the Trinity College Dublin.