On February 5, the European Court of Human Rights (ECtHR) announced that the Grand Chamber will reexamine two cases concerning bulk interception: the joined petitions of Big Brother Watch and Others v. United Kingdom, Bureau of Investigative Journalism and Alice Ross v. the United Kingdom, and 10 Human Rights Organisations v. the United Kingdom (collectively called “Big Brother Watch”), and Centrum för rättvisa v. Sweden (“Centrum”). These cases challenged the United Kingdom and Sweden’s bulk interception regimes, respectively.
In 2018, two Sections of the ECtHR determined in both cases that bulk surveillance in principle could be compliant with the European Charter of Human Rights (ECHR). But in Big Brother Watch, they found that the United Kingdom’s mass surveillance program violated Article 8 and 10 of the ECHR due to insufficient oversight and inadequate safeguards. In a partly concurring, partly dissenting separate opinion in Big Brother Watch, ECtHR Judge Koskelo, joined by Judge Turković, suggested that the ECtHR’s case law assessing the minimum safeguards that should apply to bulk interception regimes in the context of national security was insufficient and in need of clarification:
“It is obvious that such an activity – an untargeted surveillance of external communications with a view to discovering and exploring a wide range of threats – by its very nature takes on a potentially vast scope, and involves enormous risks of abuse. The safeguards against those risks, and the standards which under the Convention should apply in this regard, therefore raise questions of the highest importance. I am not convinced, in the light of present-day circumstances, that reliance on the Court’s existing case-law provides an adequate approach to the kind of surveillance regimes like the one we are dealing with here. A more thorough reconsideration would be called for. I acknowledge that this would be a task for the Court’s Grand Chamber.” (Big Brother Watch partly concurring, partly dissenting separate opinion of Judge Koskelo, joined by Judge Turković, para 3)
The Judges will get their wish. The Grand Chamber takes up the cases decided by ECtHR Sections that raise a serious question affecting the interpretation or application of the ECHR or a serious issue of general importance. Centrum was decided just a few months before Big Brother Watch, and as in Big Brother Watch, the ECtHR held that Sweden’s bulk interception regime was not per se out of step with Article 8 of the ECHR—rather, that its operation was within the state’s margin of appreciation in light of “the current threats facing many Contracting States (including the scourge of global terrorism and other serious crime, such as drug trafficking, human trafficking, sexual exploitation of children and cybercrime), advancements in technology which have made it easier for terrorists and criminals to evade detection on the internet, and the unpredictability of the routes via which electronic communications are transmitted.” (para 112)
The minimum safeguards adopted in past ECtHR case law were unevenly applied between the two cases, resulting in confusion about what standards should govern bulk interception regimes. For example, the issue of requiring reasonable suspicion, a standard adopted by the court in Roman Zakharov v. Russia (a case involving targeted surveillance for national security purposes), was unaddressed in Centrum, and was summarily dismissed as incompatible with bulk interception regimes in Big Brother Watch.
Both Centrum för rättvisa (“Center for Justice,” in English), and the applicants in Big Brother Watch sought review in the Grand Chamber. In two separate requests to refer Big Brother Watch to the Grand Chamber, the applicants in Big Brother Watch raised three issues. First, they challenged the finding that bulk interception regimes could be considered compatible with the ECHR. They stated that “the bulk collection and storage of data and communications of a substantial segment of the European population, the majority of whom are of no interest to the intelligence agencies, is plainly disproportionate.” (para 21) Second, they argued that, even if the Grand Chamber were to bless bulk interception, the minimum requirements for mass surveillance operations set out in Weber and Saravia v. Germany should be “updated in light of a technological ‘sea change’” that had occurred since Weber. (para 10.1) The new safeguards should include: 1) objective evidence of reasonable suspicion of serious crime or conduct, amounting to a specific threat to the nation’s security related to the person for whom the data is sought; 2) ex ante independent judicial authorization of interception; 3) judicial approval to prevent the misuse of collected data in the form of approval for querying and analyzing data collected; and 4) subsequent notice to surveillance subjects. They also argued that the same safeguards that apply in direct surveillance must also apply to data a foreign intelligence agency has intercepted or collected.
Unlike the applicants in Big Brother Watch, Centrum did not challenge the finding that bulk interception is within ‘a state’s margin of interest’, and instead focused its petition on seeking clarification of the safeguards that must apply to such regimes. Centrum argued for example, that requiring reasonable suspicion and notice are not incompatible with bulk interception, and that such requirements could guide the querying of information collected in bulk with particular selectors. Centrum asked the Grand Chamber to: 1) Clarify the necessary minimum safeguards for a bulk interception regime dealing exclusively with national security; 2) Reexamine the Court’s exclusion of the reasonable suspicion requirement from the minimum safeguards for bulk interception; 3) Develop the role of independent judicial oversight as part of the minimum safeguards that apply to bulk interception regimes; and 4) Develop the minimum safeguards governing interstate intelligence sharing.
We are pleased that the Grand Chamber has agreed to examine these two cases. We hope the Grand Chamber will determine that bulk interception is not human rights-respecting, and that if it does not, that it will require robust safeguards that protect the privacy rights of those subject to these types of regimes. The German think tank Stiftung Neue Verantwortung issued a compendium of such safeguards late last year, and CDT highlighted that work at a December 12 forum in Washington, D.C. Given the growing adoption of mass surveillance laws in many countries, the Grand Chamber’s decision to take up this matter comes at an opportune time.