Wednesday, September 19, 2018

European Court Rules NSA Surveillance Practices Violate Human Rights



Last week, the European Court of Human Rights ruled that the U.K.’s GCHQ spy agency is in violation of the European Convention on Human Rights with its mass surveillance programs. The court ultimately found that these activities violate the family and privacy rights of British and European citizens, and this assertion ultimately includes a rejection of the United States’ activities considering GCHQ has obtained much of its data from the NSA.

The suit was brought by Amnesty International, Big Brother Watch, the ACLU, the Bureau of Investigative Journalism, and other civil liberties groups. It addresses provisions of the U.K.’s 2000 Investigatory Powers Act, and though a new version of the law was passed in 2016 and is yet to be enacted, many of the issues the court identified remain in the 2016 bill.

Though the court stopped short of saying intelligence sharing between agencies like GCHQ, NSA, and members of the “Five Eyes” spying alliance violate the human rights convention, it said using such intelligence sharing to bypass restrictions on surveillance of a member state’s own citizens would be a violation of the charter,” Ars Technica summarized. (In a 2015 ruling, a U.K. court ruled intelligence sharing did, in fact, violate European law).

The Guardian clarified the ruling, which found some activities are in violation of the charter but maintained others are not:

By a majority of five to two votes, the Strasbourg judges found that GCHQ’s bulk interception regime violated article 8 of the European convention on human rights, which guarantees privacy, because there were said to be insufficient safeguards, and rules governing the selection of ‘related communications data’ were deemed to be inadequate.

“The regime used by the UK government for sharing intelligence with foreign governments did not violate either article 8 or article 10, which guarantees freedom of speech. Not was there any evidence, the judges said, to suggest that the intelligence services were abusing their powers.”

The court also failed to decide that the intelligence agencies are abusing their powers, saying, “there is no evidence to suggest that the intelligence services are abusing their powers.” Still, it also found that there are insufficient safeguards from the U.K’s Investigatory Powers Tribunal to prevent potential abuse (the Investigatory Powers Tribunal is equivalent to the United States’ Foreign Intelligence Surveillance Act system, whose courts approve nearly all warrant requests). From Ars Technica:

“The Court found that the way the UK government collected data from communications service providers was in violation of Article 8 of the ECHR (private and family life rights). It also found that both the method of bulk interception of communications and the process for obtaining communications metadata from service providers violated Article 10 (freedom of expression) because of ‘insufficient safeguards in respect of confidential journalistic material.’ And of particular concern to the court was the lack of any oversight into what Internet traffic was collected or what filters were used to determine which traffic was of interest.”

Notably, the U.K. laws the court took the most issue with mirror the American Patriot Act. “The decision sends a clear message that similar surveillance programs, such as those conducted by the NSA, are also incompatible with human rights,” said ACLU attorney Patrick Toomey.

Because the U.K. system is so similar to that of the United States — and because the U.K. relies heavily on the NSA — the ruling could have a ripple effect on the perceived legitimacy of these practices.