GCHQ’s methods of mass interception of online communications violated the right to privacy and the data collection regime was “not in accordance with the law”, found the grand chamber of the European Court of Rights of man.
He also found that the mass interception regime contained insufficient protections for confidential journalistic material, but said the decision to put in place a mass interception regime did not in itself violate the European Convention on the Rights of the Person. the man.
The chamber also found that GCHQ’s regime of sharing sensitive digital information with foreign governments was not illegal.
The Grand Chamber judgment is the culmination of a legal challenge to the massive GCHQ interception of online communications begun in 2013 by Big Brother Watch and others after Edward Snowden’s whistle-blowing revelations.
The court said it had identified three “fundamental flaws” in the regime. They were that the mass interception had been authorized by the Secretary of State, and not by an independent body of the executive; that the search term categories defining the types of communications that would become eligible for consideration had not been included in the warrant request; and that search terms linked to an individual (i.e. specific identifiers such as an e-mail address) had not received prior internal authorization.
Its judgment stated: “In order to minimize the risk of abuse of the power of mass interception, the court considers that the process must be subject to ‘end-to-end guarantees’, which means that at the national level, a made at each stage of the process of the necessity and proportionality of the measures taken; whereas mass interception should be subject to independent authorization from the outset, when the object and scope of the operation are defined; and that the transaction should be subject to ex post facto (retrospective) independent monitoring and review.
In partially dissenting opinions, some of the chamber’s 17 judges said she did not go far enough in her judgment.
Judge Pinto de Albuquerque said he opened the doors to an electronic “Big Brother” in Europe.
Three other judges disagreed with the majority opinion that the regime of sharing sensitive digital information with foreign governments was not illegal. They also said the court had “missed an excellent opportunity to fully confirm the importance of privacy and correspondence in the face of interference in the form of mass surveillance.”
In doing so, they cited George Orwell’s 1984 book in their dissenting opinion: “Of course there was no way of knowing if you were being watched at any given time. How often, or on what system, the Thought Police tapped into an individual wire was a guess. It was even conceivable that they were watching everyone all the time. But anyway, they could hook up your wire whenever they wanted. You have to live – have lived, from habit become instinctive – on the assumption that every sound you make has been heard and, except in the dark, every movement has been scrutinized.
In 2018, the ECHR upheld some of the complaints from Big Brother Watch and others, but the parties appealed to the grand chamber of the tribunal, believing the judgment did not go far enough.