On 1st July 2008 at the European Court of Human Rights in the case of Liberty & Other Organisations v. the United Kingdom (case reference 58243/00) the court found against the UK Government.
The ECHR found that UK surveillance laws lacked the necessary clarity and accountability to prevent abuses of power when used to intercept cross-border communications.
The complaint brought by Liberty stated that:
“Relying on Articles 8 (right to respect for correspondence) and 13 (right to an effective remedy), the applicants complained about the interception of their communications.”
The court agreed with Liberty that both the surveillance and the practice of surveillance must be tighter to protect individual privacy rights.
Decision of the Court
The Court recalled that it had previously found that the mere existence of legislation which allowed communications to be monitored secretly had entailed a surveillance threat for all those to whom the legislation might be applied. In the applicants’ case, the Court therefore found that there had been an interference with their rights as guaranteed by Article 8.
Section 3(2) of the 1985 Act allowed the British authorities extremely broad discretion to intercept communications between the United Kingdom and an external receiver, namely the interception of “such external communications as described in the warrant”.
Indeed, that discretion was virtually unlimited. Warrants under section 3(2) of the 1985 Act covered very broad classes of communications. In their observations to the Court, the British Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had their communication intercepted under a section 3(2) warrant. Furthermore, under the 1985 Act, the authorities had wide discretion to decide which communications, out of the total volume of those physically captured, were listened to or read.
Under section 6 of the 1985 Act, the Secretary of State was obliged to “make such arrangements as he consider[ed] necessary” to ensure a safeguard against abuse of power in the selection process for the examination, dissemination and storage of intercepted material. Although during the relevant period there had been internal regulations, manuals and instructions to provide for procedures to protect against abuse of power, and although the Commissioner appointed under the 1985 Act to oversee its workings had reported each year that the “arrangements” were satisfactory, the nature of those “arrangements” had not been contained in legislation or otherwise made available to the public.
Lastly, the Court noted the British Government’s concern that the publication of information regarding those arrangements during the period in question might have damaged the efficiency of the intelligence-gathering system or given rise to a security risk. However, in the United Kingdom, extensive extracts from the Interception of Communications Code of Practice were now in the public domain, which suggested that it was possible for the State to make public certain details about the operation of a scheme of external surveillance without compromising national security.
In conclusion, the Court considered that the domestic law at the relevant time had not indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it had not set out in a form accessible to the public any indication of the procedure to be followed for examining, sharing, storing and destroying intercepted material.
The interference with the applicants’ rights had not therefore been “in accordance with the law”, in violation of Article 8.
The Court did not consider it necessary to examine separately the complaint under Article 13.
This ruling calls into the question that fact the the UK government can monitor any communication at any time, though this is positive ruling for privacy advocates it is unlikely to prevent the creation and existence of systems like Echelon.