By: Daria Stanculescu, Junior Research Associate, PILPG-NL
On May 25, 2021, the Grand Chamber of the European Court of Human Rights (ECtHR) issued its judgment in the joined cases Big Brother Watch and Others v. the United Kingdom. In its decision, the Court ruled on the compatibility of mass surveillance systems with Articles 8 and 10 of the European Convention on Human Rights (ECHR). The Court’s judgment comes at a time where states parties to the ECHR are increasingly making use of mass surveillance regimes in the name of national security. This blog post will examine the Court’s decision in Big Brother Watch in the context of the apparent shift in Europe towards the general acceptance of surveillance regimes.
Background of the Case
Big Brother Watch is the first ECtHR judgment that focuses on mass surveillance since Edward Snowden revealed the widespread use of surveillance and intelligence programs by national intelligence services in the United States (US) and the United Kingdom (UK) in 2013. A combination of NGOs, academics, and journalists lodged the applications in Big Brother Watch between 2013 and 2015.
The applicants sought to challenge three surveillance regimes of the Government Communications Headquarters (GCHQ) in the UK: the bulk interception of communications, intelligence sharing with foreign governments, and obtaining of communications data from service providers. The applicants argued that the three systems breached the right to privacy under Article 8 of the ECHR. Several applicants also argued that the UK violated the right to freedom of expression under Article 10 of the ECHR. The UK government conversely argued that these regimes were vital for identifying national security threats. In its decision, the Court found that the bulk interception regimes breached Articles 8 and 10 ECHR. It similarly found that the regime allowing GCHQ to obtain communications data from service providers breached Articles 8 and 10 ECHR as it was not in accordance with the law. However, the Court held that receiving intelligence from foreign governments did not violate Article 8 ECHR.
An interesting aspect of the judgment is that the Court confirmed that bulk interception regimes do not in and of themselves violate Article 8 of the ECHR. The ECtHR accepted that these systems are “of vital importance” to states parties to the Convention in identifying threats to national security. Moreover, the Court held that states have a wide margin of appreciation “in choosing how to best achieve the legitimate aim of protecting national security.” This means that, in principle, the Court considers that these regimes comply with the ECHR, as long as they respect several safeguards set out in the judgment. For example, the Court held that bulk surveillance mechanisms must be subject to “end-to-end safeguards.” This means that states should assess the necessity and proportionality of the measures being taken and the bulk interception should be subject to independent authorization. Furthermore, the operation should be subject to supervision and independent review. The ECtHR held that the UK’s bulk interception regime did not meet these requirements regarding end-to-end safeguards.
Analysis
The ECtHR’s approach in Big Brother Watch may be seen as a step towards the “normalization of mass surveillance.” While the ECtHR noted that these systems must meet various safeguards to comply with the Convention, the Court did not question the operation of these systems as a whole.
This approach of applying less strict standards of scrutiny in data protection cases can also be seen in the jurisprudence of the Court of Justice of the European Union (CJEU). Initially, this Court took a pro-privacy stance. In Digital Rights Ireland, the CJEU declared the EU Data Retention Directive void, as it provided for indiscriminate data retention. Subsequently, in Tele2 Sverige, the CJEU further held that EU member states could not establish indiscriminate data retention regimes. However, more recently, in La Quadrature du Net, the CJEU has taken a different approach. In this case, the Court held that, in certain circumstances, EU member states may adopt legislation which provides for indiscriminate data retention.
The recent judgments of the ECtHR and CJEU in Big Brother Watch and La Quadrature du Net, respectively, can thus be considered more favorable to national surveillance regimes.
However, this approach has not been universally endorsed. Other international institutions have expressed reservations to this approach. Importantly, the United Nations Office of the High Commissioner for Human Rights (OHCHR), in a 2014 Report, highlighted that “governmental mass surveillance [is] emerging as a dangerous habit rather than an exceptional measure.” Furthermore, the Report noted that “the very existence of a mass surveillance program thus creates an interference with the right to privacy.” More recently, in 2019, the United Nations Special Rapporteur on the freedom of opinion and expression has called for tighter regulation on the use of surveillance technology until states develop frameworks that comply with human rights. These statements show that the European approach has thus far not been adopted at international level.
Conclusion
In the context of ECHR states parties’ increasing reliance on mass surveillance systems, the importance of the ECtHR’s judgment in Big Brother Watch can hardly be exaggerated. The Court’s decision is aligned with the approach of the CJEU, which seems to point towards a dialogue between the two courts, both of which have begun to allow surveillance regimes that meet certain safeguards. It remains to be seen whether, in future judgments, the ECtHR and the CJEU will continue this approach or whether these courts will revert to a privacy-oriented approach.