Submission

ECtHR: Bulk interception powers violate freedom of expression

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ARTICLE 19

14 Mar 2016

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On 4 March, ARTICLE 19 filed a third-party intervention in 10 Human Rights Organisations v the UK (no. 24960/15). The case concerns the compatibility of the UK surveillance regime, including bulk interception powers under the Regulatory Investigatory Powers Act 2000 (RIPA) with the rights to freedom of expression and private life under Articles 10 and 8 of the European Convention on Human Rights.

ARTICLE 19 believes that this case presents the European Court of Human Rights with an important opportunity to affirm that the indiscriminate interception, storage and analysis of online communications has a chilling effect on the freedom of expression of non-governmental organisations (NGOs). In our submissions, we address the following:

(i) the principle of source protection for NGOs in the case law of the Court;

(ii) the practical importance of source protection for NGOs;

(iii) the inherent chilling effect of bulk interception capabilities and powers on NGOs’ freedom of expression;

(iv) international criticism of bulk surveillance powers;

(v) emerging consensus on the required legal safeguards for the protection of the right to privacy in the context of surveillance.

In essence, ARTICLE 19 argues:

  • Bulk interception powers represent one of the greatest threats to fundamental rights in the digital age. This threat is particularly acute in the case of NGOs, whose public watchdog function is at serious risk of being undermined by bulk collection of their private communications by governments around the world. The potential for a global chilling effect on NGOs activities is immense. For this reason, we believe that the Court should make clear that the long-established protections enjoyed by the press for the protection of their sources must apply with equal weight to NGOs.
  • By their very nature, mass interception powers are incapable of distinguishing between the communications of NGOs or other protected professions, those of ordinary persons, and those individuals involved in criminal activity. Such blanket powers are therefore inherently incapable of being exercised in a proportionate manner. As such, ARTICLE 19 argues that they are fundamentally incompatible with the requirements of the Convention.

We therefore urge the Court to conclude that only targeted surveillance based on reasonable suspicion and authorized by a judge constitutes a legitimate restriction on the rights to privacy and freedom of expression. Anything less would seriously under individuals’ rights to free expression, privacy, democracy and the rule of law.

 

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