European Court of Human Rights: United Kingdom’s Secret Surveillance Program Violated Privacy Rights
In Liberty v. United Kingdom , No. 58243/00, the European Court of Human Rights has held that the United Kingdom violated the privacy rights of three organizations (Liberty, British Irish Rights Watch, and the Irish Council for Civil Liberties) when it conducted broad surveillance of data communications in the 1990s. According to the opinion:
The applicants alleged that in the 1990s the Ministry of Defence operated an Electronic Test Facility (“ETF”) at Capenhurst, Cheshire, which was built to intercept 10,000 simultaneous telephone channels coming from Dublin to London and on to the continent. Between 1990 and 1997 the applicants claimed that the ETF intercepted all public telecommunications, including telephone, facsimile and e-mail communications, carried on microwave radio between the two British Telecom’s radio stations (at Clwyd and Chester), a link which also carried much of Ireland’s telecommunications traffic. During this period the applicant organisations were in regular telephone contact with each other and also providing, inter alia, legal advice to those who sought their assistance. They alleged that many of their communications would have passed between the British Telecom radio stations referred to above and would thus have been intercepted by the ETF. […]
For security reasons, the Government adopted a general policy of neither confirming nor denying allegations made in respect of surveillance activities. For the purposes of this application, however, they were content for the Court to proceed on the hypothetical basis that the applicants could rightly claim that communications sent to or from their offices were intercepted at the Capenhurst ETF during the relevant period. Indeed, they submitted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication physically intercepted under a section 3(2) warrant.
After a review of the program and the UK’s surveillance laws authorizing the program, the Court held unanimously that there had been a violation of Article 8 of the European Convention on Human Rights (pdf).
Article 8 — Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Court said it "does not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications." The Court noted, "In particular, [the UK law] did not, as required by the Court’s case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants’ rights under Article 8 was not, therefore, ‘in accordance with the law.’"
The Court also said, "The legal discretion granted to the executive for the physical capture of external communications was, therefore, virtually unfettered." The Court noted that the Regulation of Investigatory Powers Act of 2000 (which replaced the law at issue in the case) was quite similar to the law it ruled violated privacy rights.