by Peter Schaar

On 13 September 2018, the European Court of Human Rights (ECHR) in Strasbourg ruled that the mass surveillance of the British intelligence service GCHQ (Government Communications Headquarters) carried out in cooperation with the US National Security Agency (NSA) was a violation of the European Convention on Human Rights (ECHR).

The verdict was passed almost exactly five years to the day after the lawsuit was filed by the British civil rights organisation Big Brother Watch and others, including Amnesty International, the British PEN club and the spokeswoman of the German Chaos Computer Club Constanze Kurz.

1.    Substance of the decision

In the Chamber ruling (ECHR 299 (2018), the Court found that mass surveillance violated Article 8 ECHR (right of respect for private and family life and communication) and Article 10 (freedom of expression and of the press).

Both the selection of monitored Internet users and the filtering, searching and selection of intercepted messages were insufficiently controlled. Furthermore, there were no safeguards for the selection of “linked communication data”, in particular with regard to their verification.

The mechanisms used by the GCHQ to obtain data stored by communications service providers also violate Article 8. Both the regime of mass surveillance and the procurement of communications data from communications service providers violated Article 10 (freedom of the press and freedom of expression) on the grounds that there are insufficient safeguards with regard to confidential journalistic material.

The Court did not object the exchange of obtained data with services of other states. The Court also rejected complaints concerning shortcomings in the judicial review of monitoring practices and breaches of the principle of non-discrimination.

2.    Assessment

This is the first ruling of a supreme European court to deal directly with the surveillance practice exposed by Edward Snowden. Together with earlier rulings – such as the annulment of the Safe Harbour Agreement by the European Union Court of Justice (ECJ) in 2015 – the recent decision makes it clear that state surveillance measures always find their limits where they violate fundamental and human rights. This is always the case when data relating to a large number of people with no link whatsoever to a serious threat to public safety are affected indiscriminately.

Effective control of government action by courts, independent data protection authorities, and parliaments is also crucial. None of this was given in the comprehensive monitoring activities revealed in 2013.

The importance of the decision is considerable and goes far beyond the criticised practice of the UK authorities. Although the Court found that not every regulation which provides for mass monitoring in itself contravenes the ECHR. At the same time, however, it found that such a system must meet the criteria laid down in the ECHR case-law.

The UK is now urged to significantly curtail the surveillance practices of secret services. This is even more necessary now that the Investigative Powers Act 2016 has further extended the powers of surveillance. Since the Brexit referendum, hardliners have been demanding that the United Kingdom should leave the ECHR. Although the European Union as an institution has not itself joined the ECHR, it is subject to the provisions of the Charter of Fundamental Rights. The European Union is required to make it clear during the withdrawal negotiations that any “amicable” settlement with Great Britain is excluded unless the country feels bound by human rights and recognises the case law of either the ECHR or the European Court of Justice as binding.

Given the continuing mass surveillance by secret services, however, a significant restriction of the powers of the intelligence services is not only necessary in Great Britain. This also applies to Germany, where the Grand Coalition, with various laws passed in 2016, has extended the powers of the Federal Office for the Protection of the Constitution (Verfassungsschutz) and legalised the previously illegal interception practices of the Federal Intelligence Service (Bundesnachrichtendienstes).

The ECHR decision is a wake-up call which should prompt us to resume the largely dormant discussion in recent years on how much surveillance a liberal society can tolerate.

Peter Schaar is Chairman of the European Academy for Freedom of Information and Data Protection (EAID) and former German Federal Commissioner for Data Protection and Freedom of Information (2003-2013).

Translation by Philadelphia English Services.