Europe's Human Rights Court Says UK Mass Surveillance Violated Rights, Unlawfully Obtained Journalists' Communications

from the leaking-works dept

Another court case prompted by the Snowden leaks has reached its conclusion. And the findings are that Snowden’s revelations were accurate: the NSA’s Five Eyes partners were breaking laws and ignoring people’s rights when engaging in mass surveillance. That’s just a natural side effect of grabbing communications and data in bulk and pretending it’s lawful if you sort through it after you’ve already acquired it.

The UK spy agency GCHQ’s methods for bulk interception of online communications violated the right to privacy and the regime for collection of data was unlawful, the grand chamber of the European court of human rights has ruled.

In what was described as a “landmark victory” by Liberty, one of the applicants, the judges also found the bulk interception regime breached the right to freedom of expression and contained insufficient protections for confidential journalistic material but said the decision to operate a bulk interception regime did not of itself violate the European convention on human rights.

Another one of the claimants — the Bureau for Investigative Journalism — says this is a win for journalists all over Europe. The ruling institutes more protections for news gatherers, which should hopefully prevent some of these violations from reoccurring.

The UK government violated the freedom of the press for decades under its mass spying programme and must now seek independent permission to access any confidential journalistic material, the European Court of Human Rights has ruled.

In a significant victory for press freedom, the new protections will apply to all confidential material collected by journalists in their reporting, not just the identity of sources. The judgment covers state authorities across Europe, including intelligence agencies, government departments and the police.

Unfortunately, it takes lots of plaintiffs and millions of dollars just to obtain a common sense ruling that intercepting journalists’ communications and metadata is a violation of rights. It also takes whistleblowers willing to come forward and expose what they’ve seen while working for surveillance agencies. It’s very unlikely a case would have been brought — much less won — without the Snowden leaks. This legal process began in 2013, shortly after Snowden started releasing material to journalists. And some of the recipients of these leaks saw themselves attacked and surveilled by their governments for reporting on these documents.

From now on, any surveillance targeting journalists or inadvertent collection of their communications and data must be run by an independent entity before it can be used in investigations or prosecutions. The spy agencies must prove their interests are greater than the public’s interest in whatever the journalists are reporting on. They also must show there’s no other way to obtain this same information without utilizing data and communications obtained from journalists. Yes, this may encourage parallel construction and other data laundering, but at least it should deter the direct targeting of journalists.

There may be more favorable rulings in the future. One of the complainants says this win will allow some of its other legal challenges against mass surveillance to move forward. And some of the 17(!) dissenting judges said this ruling — while a landmark decision — does not go far enough to protect journalists and other innocent people from bulk surveillance.

Then there’s the UK’s “Snooper’s Charter” — one that’s been in the works for nearly a half-decade — which would expand surveillance powers in the UK. The UK exited the European Union, making it unclear what effect this decision would have on domestic surveillance. And the UK government’s ongoing war on encryption makes it clear many of those currently writing and approving legislation don’t really care if rights are violated — not if those rights stand in the way of law enforcement investigations and vague national security interests.

But it’s still a significant win. While it may do little for UK journalists now or in the future, it does erect additional protections for journalists located elsewhere in Europe. And it shows whistleblowing works and, indirectly, why far too many governments have decided whistleblowers are threats to be eradicated, rather than protected.

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