After human rights groups challenged the government for its mass surveillance infrastructure, they were themselves illegally spied on. Illegal state spying jeopardises all our freedoms, and must be stopped.
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Why is an international coalition of human rights campaigners challenging the UK government’s mass surveillance programmes in the European Court of Human Rights?
We’ve known that governments have been spying on all of us since whistleblower Edward Snowden exposed the scale of mass online surveillance in 2013. At the start of November, Liberty and an international coalition of human rights campaigners challenged the programmes he uncovered in court.
The Snowden documents revealed how UK government ministers allowed GCHQ to collect and store a backup of every communication entering and leaving the UK so they could trawl through them later.
The Snowden documents showed us that those in power have access to our innermost thoughts.
They made public how UK intelligence services accessed the content of communications (including emails, chats, videos and images) gathered by the US government as it passed through American cables or was held by American companies like Microsoft, Apple, Yahoo!, Google, Facebook, Skype and YouTube.
The Snowden documents showed us that those in power have access to our innermost thoughts. They can pore over the ideas we share, track our travel plans, listen in on our meetings, browse our financial records, and quietly observe our conversations with friends, lawyers, doctors, colleagues and loved ones.
They can review which websites we visit, which forums we join, what games we play online. They can monitor our location, our movements and our interactions.
At Liberty, and at human rights groups around the world, we saw this for the rights violation it is, and the chilling effect on democratic freedoms that follow – so we took the UK government to court.
In December 2014, the Investigatory Powers Tribunal – the secretive court that oversees our intelligence services – decided that what the Government had been doing was, in principle, lawful.
But two months later, the court issued a second judgment. It ruled that the UK government’s access to US surveillance had unlawfully violated people’s rights before the legal challenge – because the agencies’ internal guidance for handling it had been kept secret.
The government had been allowed to make submissions about that guidance in closed court, without Liberty or the other organisations present. Unsurprisingly, we disagreed with the secretive court’s conclusion that safeguards shown to it in secret were an adequate protection of our fundamental rights.
And in June 2015, the Tribunal confirmed that GCHQ had carried out unlawful surveillance on two of the organisations taking the case alongside us: Amnesty International and the Legal Resources Centre.
The court didn’t rule out the possibility that the other organisations had been monitored too. If they had, the Tribunal simply didn’t disclose it because it didn’t consider it unlawful.
GCHQ had carried out unlawful surveillance on two of the groups taking the case alongside us: Amnesty International and the Legal Resources Centre.
These rulings were the first time this closed-doors court had ever ruled against the security services in its 15-year history. It was the first time it admitted publicly that the UK government had used its surveillance powers to target political and human rights activists.
We are human rights campaigners. Our organisations exist to stand up for people and challenge the powerful. We regularly communicate with activists in the UK and overseas, as well as journalists, whistleblowers, victims of state abuse, government officials and lawyers.
Some of our fellow claimants work in countries where basic rights and freedoms are under sustained and violent attack. Without strict confidentiality and protection of sources, their work is dangerously undermined and they and those they communicate with are at risk.
Industrial-scale state spying is a violation of our fundamental human rights. It jeopardises everything on which our freedom stands – our privacy, our free press, our right to speak, think and associate freely.
No democratic state has ever deployed powers like this against its citizens and remained a rights-respecting democracy.
So we weren’t satisfied with the 2014 ruling that mass surveillance is, for the most part, lawful – and we took our case to the European Court of Human Rights.
At the hearing earlier this month, our barrister had the government’s lawyers on the back foot.
We argued that the UK government should not be able to scoop up and access all of our communications on a massive, international scale.
We argued that, without limits on government surveillance, free expression, democracy and the rule of law are gravely threatened.
We argued that, without limits on government surveillance, free expression, democracy and the rule of law are gravely threatened.
We argued that surveillance is only acceptable when it’s based on suspicion of serious criminal activity, and that independent judges should decide when to allow it – instead of the spy agencies and Home Secretary themselves.
Several of the judges posed questions, mostly to the government.
They wanted to know more about the lack of safeguards in place for sensitive information like that handled by human rights organisations, doctors, elected representatives and lawyers.
The court wanted confirmation that surveillance warrants are in fact issued on a rolling basis, with the Home Secretary having signed just one single certificate to green-light the collection of millions of people’s messages. And the judges wanted more information on what safeguards existed to restrict the scope of these warrants.
The government did its best to answer these questions. But it’s not easy to defend policies lifted from the pages of a dystopian novel.
If we win this battle, a vital blow will be struck against mass state surveillance that treats us all as suspects first and citizens second.
We’ll be one step closer to reclaiming our fundamental right to express ourselves and communicate without fear – protecting our freedom and democracy for generations to come.
(Silkie Carlo is Senior Advocacy Officer at Liberty where she leads Liberty’s work on technology and human rights, advocating for the protection of rights in areas including state surveillance, new policing technologies, uses of big data, artificial intelligence and free expression online).
(This story was first published on openDemocracy).