European Court of Human Rights: the use of government hacking “represents one of the greatest threats to fundamental rights in the digital age”

Circumstances of the case

On 16 September 2019, ARTICLE 19 and the Electronic Frontier Foundation (EFF) submitted a third party intervention before the European Court of Human Rights (ECtHR) in the case of Privacy International v. the United Kingdom. The case concerns whether government interference with computer systems or equipment – so called “government hacking” – is compatible with the rights to privacy and freedom of expression.

The UK is renowned for its intelligence capabilities and the way in which it regulates surveillance is often replicated around the world. The decision in this case will have a significant cascade effect on standards of surveillance around the world.

The Snowden surveillance files showed that the UK’s Government Communications Headquarters (GCHQ) has already developed extensive means of hacking, including recording conversations, recording internet browsing histories, collecting login details and passwords, and taking over a computer webcam.

The use of ambiguous terms such as “interference” and “investigation” in the Investigatory Powers Act (IPA) 2016 leaves unclear whether the UK is using techniques of hacking which are even more pervasive. As our intervention sets out, this ambiguity creates considerable scope for abuse by the government.

The brief argues that “government hacking” is one of the greatest threats to fundamental rights

  • The use of government surveillance has a “chilling effect” on the online expression of everyone. Studies have shown that government use of hacking leads people to self-censor for fear that their communications will be tracked. For example, it may prevent them from organising or supporting protests online.
  • Government surveillance has been shown to have a particular impact on the free expression rights of certain vulnerable groups, who may be particularly fearful of reporting abuse.
  • The use of government surveillance techniques has been shown to severely limit the ability of journalists to conduct research and investigations, and to publish their work.
  • As has been shown by the UN Special Rapporteur on freedom of expression, some surveillance or hacking techniques (intrusion software such as Trojans) represent such a serious threat that they are irreconcilable with laws on surveillance and privacy
  • Importantly, once a new vulnerability has been found in computers or software which enables the use of hacking, governments are not the only ones who can exploit this new vulnerability. In practice, a single vulnerability in a computer or software may be exploited by a range of malicious third parties – including other governments or simple thieves.

The use of government interference or “hacking” represents one of the greatest threats to fundamental rights in the digital age. Not only does it have a “chilling effect” on the rights to privacy and freedom of expression, but it also has the potential to impact other fundamental rights.

The intervention concludes that the Court must carefully consider the technical implications of government use of these techniques on human rights, particularly in the absence of sufficient safeguards.