West Law Report

Civil liberties violated by electronic interception

Posted in Times Law Report by mrkooenglish on July 21, 2008

From The TimesJuly 11, 2008

Civil liberties violated by electronic interception
European Court of Human Rights
Published July 11, 2008
Liberty and Others v United Kingdom
(Application No 58243/00)
Before L. Garlicki, President and Judges Sir Nicholas Bratza, L. Mijovic, D. Thór Björgvinsson, J. Šikuta, P. Hirvelä and M. Poalelungi
Section Registrar L. Early
Judgment July 1, 2008

Complaints by civil liberty organisations about secret interception by the Ministry of Defence of their external communications were not dealt with adequately under the Interception of Communications Act 1985 which had not been formulated with sufficient clarity to give individuals protection.

The European Court of Human Rights held unanimously the right to respect for private and family life and correspondence, as guaranteed by article 8 of the European Convention on Human Rights, had been violated.

The applicants were Liberty, based in London, British Irish Rights Watch and the Irish Council for Civil Liberties, both based in Dublin.

The case concerned their allegations that, between 1990 and 1997, their telephone, facsimile, e-mail and data communications, including legally privileged and confidential information, were intercepted by an electronic test facility operated by the British Ministry of Defence.

The applicants lodged complaints with the Interception of Communications Tribunal, the Director of Public Prosecutions and the Investigatory Powers Tribunal, to challenge the lawfulness of the alleged interception of their communications, but to no avail. The domestic tribunals found, in particular, that there was no contravention of the 1985 Act [partially repealed by the Regulation of Investigatory Powers Act 2000]

The applicants complained that the interception of their communications had breached articles 8 and 13, guaranteeing an effective remedy. The Court held:

I Article 8

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) covered very broad classes of communications.

In their observations to the Court, the 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 Home Secretary was obliged to make such arrangements as he considered 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.

The Court noted the UK 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 Court therefore held, unanimously, that the interference with the applicants’ rights had not been in accordance with the law, in violation of article 8.

II Article 13

The Court did not consider it necessary to examine separately the complaint under article 13.

III Application of article 41

The Court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage caused to the applicants, and awarded them €7,500 for costs and expenses.

— Full text: http//www.echr.coe.int

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