Landmark legal challenge to mass surveillance powers

By agency reporter
June 18, 2019

A ground-breaking legal challenge to mass surveillance powers under the 'Snoopers’ Charter' is being heard in the High Court this week. The case is being brought by the civil rights organisation Liberty.

The Snoopers’ Charter (the Investigatory Powers Act 2016) created the most intrusive and sweeping state surveillance regime of any democracy.

Through 'bulk warrants', the Act grants wide-ranging surveillance powers to State agencies who can scoop up and store the emails, text messages, calls, location data, and internet history of huge swathes of the population. These agencies can intercept everyone's digital communications in bulk, hack into computers, phones and tablets, and create vast 'personal datasets' without suspicion.

The powers Liberty is challenging allow for warrants for bulk interception, bulk hacking, bulk acquisition (compelling private companies to pass over people’s data), bulk retention and access (compelling private companies to retain people’s data and allowing access to it), and acquisition of bulk personal datasets (allowing agencies to retain, search and link vast databases on people held by the public or private sector).

Megan Goulding, lawyer at Liberty, said: “In creating the Snoopers’ Charter, the UK Government has attempted to legitimise the most sweeping and intrusive mass surveillance powers to be found anywhere in the democratic world. These powers allow the state to collect the messages, location and browsing history of innocent, ordinary people without grounds for suspicion.

“We are bringing this challenge because this law has no place in any credible democracy, least of all one with such a long and proud history of defending individual liberty. The Government must introduce a targeted surveillance regime that does not require its citizens to sacrifice their rights to privacy and freedom of expression.”

Liberty will argue that various powers contained in the Act breach Article 8 (the right to privacy) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights. Liberty will further argue that there are insufficient safeguards in the Act to protect confidential journalistic sources and legally privileged material. The National Union of Journalists is intervening regarding journalist protections.

Last week, as part of this litigation, it was revealed in court that MI5 has been unlawfully retaining people’s data obtained through the bulk powers Liberty is challenging.

The full nature and extent of MI5’s illegal activity remains unknown as the Government is trying to keep it from the public, though the Investigatory Powers Commissioner said it was severe enough that he considers MI5’s handling of data to be in “special measures”. Liberty says that MI5’s admission that people’s data is being held in “ungoverned spaces” shows that the Act’s safeguards, and its oversight system, are inadequate for protecting our privacy and freedom of expression.

Liberty’s case is that the Act’s safeguards are inadequate to protect people’s privacy and free expression, but MI5’s disclosures show they are failing to be enforced, so people’s rights are being violated even further.

This is the second part of the challenge to the Investigatory Powers Act. In April 2018, Liberty won the first part of this case. The High Court found the Government’s power to order private companies to store communications data, including internet history, so that state agencies can access it, breached rights to privacy.

* Liberty https://www.libertyhumanrights.org.uk/

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