GCHQ, MI5, MI6 face first major lawsuit over mass surveillance in EU court

The European court of human rights (ECHR), on Tuesday (7 November), heard the first major case brought forward by multiple civil rights groups against British intelligence agencies over mass surveillance concerns. Seven judges in Strasbourg heard three separate cases, highlighting the way GCHQ, MI5 and MI6 share surveillance with the US and other international governments.

The claims were brought forward by Amnesty International, Privacy International, Liberty, the American Civil Liberties Union (ACLU), the Big Brother Watch, Legal Resources Centre, as well as groups from Egypt and Pakistan, the Guardian reported.

The investigatory powers tribunal (IPT) in London has already considered one of the cases, brought forward by a collaboration of 10 human rights groups. The tribunal previously found that GCHQ spied on civil rights groups such as Amnesty International and South Africa-based Legal Resources Centre. However, the tribunal ruled that British intelligence agencies surveillance powers and activities were legal under British law.

The hearing focused on cross-border spying and data collection programmes between the UK and the US. All of the civil rights groups argued that the various cross-border surveillance programmes used by governments on an international scale are detrimental to privacy and unlawful.

UK mass spying powers "clearly defective"

The Strasbourg hearing focused on mass data collecting programmes used by international governments such as Tempora, Upstream and Prism, disclosed by Edward Snowden's revelations in 2013.

GCHQ "retain and store very large volumes of data relating to millions of people, even when those individuals are of no intelligence interest at all", Dinah Rose QC, representing the civil rights groups, told the EU court, the Independent reported. "The activities also breach the applicants' rights to freedom of expression, including the vitally important right of journalists and human rights NGOs to impart and receive information in confidence."

The human rights groups also argued that the investigatory powers tribunal, which supervises British intelligence agencies' bulk data collection, "lacks independence from the agencies whose conduct it has been created to supervise, its procedures are flawed and unfair, and the remedies it can give are inadequate".

James Eadie QC, who represented the British government in the EU court argued that should the cases brought forward be accepted, it may cause "profound damage to the capabilities and work of the UK intelligence services".

"The nature of the safeguards against unwarranted intrusion, on the right to proper respect for privacy, need, we say, to take into account the impact on the ability of the Government to protect the lives and safety of the public, all the more so in light of the string of appalling atrocities across Europe," he argued, the Independent reported. "Whilst privacy rights are important and to be respected, the right to life is paramount. In this sphere, national security is not an end in itself. The intelligence services operate, as far as they can in a dangerous world, to protect the public."

Statements by civil rights groups

"This case concerns the UK, but its significance is global. It's a watershed moment for people's privacy and freedom of expression across the world," said Amnesty International's senior legal counsel Nick Williams.

"UK citizens who are not suspected of any wrongdoing should be able to live their lives in both the physical and the digital world safely and securely without such government intrusion," Griff Ferris, of Big Brother Watch, said.

"Our organisations exist to stand up for people and challenge abuse of power. We work with whistleblowers, victims, lawyers, journalists and campaigners around the world, so confidentiality and protection of our sources is vital," said Liberty director Martha Spurrier. "The UK government's vast, cross-border mass surveillance regime – which lets it access millions of people's communications every day – has made those protections meaningless."

The EU court's judgement on the cases may impact the future of Britian's surveillance regime, likely even affecting the Investigatory Powers Act, which was brought into effect this year despite widespread concerns and criticism.