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Politics & Law Series: Expert Comment

GCHQ’s mass surveillance program may constitute a breach of human rights

The City Law School’s Dr Carmen Draghici comments on the legality of the UK’s large-scale surveillance program and a legal complaint filed in the European Court of Human Rights.
by John Stevenson (Senior Communications Officer)

Senior Lecturer in The City Law School, Dr Carmen Draghici, says the right to privacy enshrined in Article 8 of the European Convention on Human Rights does not entirely exclude surveillance measures and data collection by police and secret service agencies.

Her comment comes in the wake of a legal complaint lodged by Amnesty International, Privacy International and Liberty with the European Court of Human Rights (ECHR). The human rights organisations have asked the ECHR to rule on the legality of the Government Communications Headquarters’ (GCHQ) large-scale surveillance programme.

DraghiciThe scale of the surveillance carried out by the GCHQ was revealed by US whistleblower Edward Snowden. A similar legal challenge mounted with the Investigatory Powers Tribunal (IPT) last year, saw judges rule that such spying did not constitute a breach of human rights. The case was brought to the IPT against the GCHQ by Amnesty International, Privacy International, Liberty, the American Civil Liberties Union (ACLU) and other international human rights groups.

The organisations claimed that their private communications may have been monitored under Tempora, the GCHQ’s electronic surveillance programme. They also argued that information obtained through the American National Security Agency’s (NSA) Prism and Upstream programmes may have been shared with British intelligence organisations, bypassing protection afforded by the UK legal system.

Dr Draghici, who teaches Human Rights Law and convenes the International Dispute Settlement module of City’s LLM in Public International Law, says the right to privacy comes with a trade-off in terms of the right of the state to protect its citizens:

“The right to privacy enshrined in Article 8 of the European Convention on Human Rights does not entirely exclude surveillance measures and data collection by police and secret service agencies. The Convention system recognises that some degree of interference with the individual right to privacy may be necessary in order to protect national security and the safety of the community.”

She cites recent case law to qualify this position:

“The Strasbourg Court has, nevertheless, established, since the landmark decision in Klass v Germany of 1978, that legislation implementing a system of surveillance must provide for sufficient safeguards against abuse by State authorities, including the close regulation of the nature, scope and duration of the measures, the grounds required for ordering them, the bodies competent to carry out and supervise such measures, and the remedies provided to the individuals concerned. More recent case law, such as Ekimdzhiev v Bulgaria of 2007, also insists on a right for the persons subjected to surveillance measures to be informed – if not while surveillance is in progress (unawareness may be critical to the efficiency of the mechanism), certainly after the termination of the surveillance activities, so that they may seek redress for unlawful interferences.”

Dr Draghici says the legitimacy of the surveillance practices of the GCHQ will therefore depend on the extent to which the legal regime under which they operate complies with the above-mentioned safeguards against abuse required by Strasbourg case law.

She suggests that “a generic mass surveillance programme, i.e. the indiscriminate interception, storage and exploitation of private communications, is likely to be found to amount to a disproportionate interference with Article 8 rights (e.g. monitoring Facebook accounts with no suspicion of criminal activity and on the basis of warrants obtained without proper scrutiny).”

Definition
Electronic surveillance

The monitoring of the behaviour, activities, or other changing information, usually of people, for the purpose of influencing, managing, directing, or protecting them. This can include observation from a distance by means of electronic equipment (such as CCTV cameras), or interception of electronically transmitted information (such as Internet traffic or phone calls); and it can include simple, relatively no- or low-technology methods such as human intelligence agents and postal interception.

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