Big Brother Watch v. United Kingdom
(2022) 74 E.H.R.R. 17
In the European Court of Human Rights
Application Numbers 58170/13, 62322/14, and 24960/15
Before the members of the Grand Chamber
Decided on May 25, 2021

Relevancy of the Case: Validity of legal framework enabling bulk interception of cross-border communication by intelligence services using secret surveillance operations

Statutes and Provisions Involved

• The Regulation of Investigatory Powers Act 2000 (Section 1(1), 8(4), 15, 16, 20, 71, 72(1), 81)
• The European Convention on Human Rights (Article 8, 10)
• The Intelligence Services Act 1994 (Section 2, 3, 4)
• The Official Secrets Act 1989
• The Human Rights Act 1998
• The Investigatory Powers Act 2016

Relevant Facts of the Case

• The Edward Snowden revelations in 2013 brought attention to electronic surveillance programmes in the US and UK.
• Government Communications Headquarters (GCHQ) admitted the existence of two major processing systems for bulk interception of communication. However, it neither confirmed nor denied the existence of the TEMPORA operation. This operation tapped into and stored large volumes of data drawn from bearers.
• Section 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) provides for the issuance of untargeted warrants for the interception of external communication. The UK can also formally request intelligence from foreign intelligence agencies.
• The United States admitted the existence of PRISM and Upsteam. PRISM, through ISPs, obtained specific and targeted communications and data. Upstream targeted non-US individuals by collecting their communication and metadata from communication service providers (CSPs).
• In the United States, PRISM and Upstream operated under the legal framework of the Foreign Intelligence Surveillance Act (FISA). A law enforcement agency had to apply before the Foreign Intelligence Surveillance Court (FISC) to access PRISM.
•  Three NGOs, Big Brother Watch, English Pen, and Open Rights Group, have challenged the bulk interception of communication, intelligence sharing, and obtaining communications data from service providers. Their applications contend that the existing legal regime is incompatible with the European Convention on Human Rights (ECHR).

Prominent Arguments by the Counsels

• The applicant’s counsel claimed the likelihood of being a subject of surveillance and the sharing of information between the intelligence agencies, locally and internationally, constituted disproportionate interference with the right to privacy. They did not approach the Investigative Powers Tribunal in the UK as it did not provide them with an effective remedy.
• The respondent state’s counsel submitted that their surveillance activities are in accordance with the three-part test of legality, legitimacy, and necessity in a democratic society. Also, the applicants did not exhaust their domestic remedies before applying to the European Court of Human Rights.

Opinion of the Bench

• Section 8(4) of RIPA did not meet the quality of law requirement and was incapable of keeping the interface to what was necessary in a democratic society. In this context, Article 8 is violated.
• The regime for requesting and receiving intercepted material is compatible with Article 8 of ECHR. Thus, there is no violation. Also, there is no violation of Article 10 concerning the intelligence sharing regime.

Final Decision

• The court unanimously held that Section 8(4) violates Articles 8 and 10 of ECHR.
• The court held by 12 votes to five that there was no violation of ECHR in receiving intelligence from foreign intelligence services.
• Further, the court directed the respondent state to pay a sum in respect of costs and expenses to the applicants.

Parul Anand, an undergraduate student at the National Law University, Jodhpur, Rugved Mahamuni, an undergraduate student at the Vasantrao Pawar Law College, Baramati, and Satvik Mishra, an undergraduate student at the Rajiv Gandhi National University of Law, Punjab, Srikari Ammanamanchi, an undergraduate student at the NALSAR University of Law, prepared this case summary during their internship with The Cyber Blog India in May/June 2022.