Wednesday, July 02, 2008

ECHR: UK phone tap practices illegal

Yesterday the European Court of Human Rights ruled, in a case brought by Liberty, the British Irish Rights Watch and the Irish Council for Civil Liberties, that UK phone tapping practices contravened Article 8 of the European Convention on Human Rights. Basically they noted that the practice of phone tapping under the relevant 1985 interception of communications act (now superceded by the Regulation of Investigatory Powers Act 2000) were way too broad and sweeping, had insufficient checks and balances, and breached the technical need for users of communications services to have come degree of clarity and foreseeability about the circumstances under which interception might occur.

I wonder what the court would make of the mass unconstitutional wiretapping programme sanctioned by the Bush administration and facilitated by the telcos in the US and the fact that both the main candidates for the presidential election in November are now committed to giving retroactive immunity to the organisations involved?

Extract from the court's decision yesterday:


41. The applicants complained about the interception of their communications, contrary to Article 8 of the Convention:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. The parties’ submissions

1. The applicants

42. The applicants complained that, between 1990 and 1997, telephone, facsimile, e-mail and data communications between them were intercepted by the Capenhurst facility, including legally privileged and confidential material.

43. Through the statements of Mr Duncan Campbell, a telecommunications expert, they alleged that the process applying to external warrants under section 3(2) of the 1985 Act embodied five stages...

44. The applicants contended that since the section 3(2) procedure permitted the interception of all communications falling within the large category set out in each warrant, the only protection afforded to those whose communications were intercepted was that the Secretary of State, under section 6(1) of the Act, had to “make such arrangements as he considers necessary for the purpose of securing that ... so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person” unless the requirements of section 6(2) were met. However, the precise nature of these “arrangements” were not, at the relevant time, made known to the public, nor was there any procedure available to permit an individual to satisfy him or herself that the “arrangements” had been followed. The Tribunal did not have jurisdiction to examine such compliance, and although the Commissioner was authorised under section 8 to review the adequacy of the “arrangements” in general, he had no power to review whether they had been met in an individual case.

45. It was plain that the alleged interception of communications constituted an interference with the applicants’ rights under Article 8 § 1. Any such interception, to comply with Article 8 § 2, had to be “in accordance with the law”, and thus have a basis in domestic law that was adequately accessible and formulated with sufficient precision as to be foreseeable. They contended that the United Kingdom legislation breached the requirements of foreseeability...

A. Admissibility

55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Whether there was an interference

56. Telephone, facsimile and e-mail communications are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 77, 29 June 2006, and the cases cited therein). The Court recalls its findings in previous cases to the effect that the mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This threat necessarily strikes at freedom of communication between users of the telecommunications services and thereby amounts in itself to an interference with the exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against them (see Weber and Saravia, cited above, § 78).

57. The Court notes that the Government are prepared to proceed, for the purposes of the present application, on the basis that the applicants can claim to be victims of an interference with their communications sent to or from their offices in the United Kingdom and Ireland... The Court considers that the existence of these powers, particularly those permitting the examination, use and storage of intercepted communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied (see Weber and Saravia, cited above, §§ 78-79).

2. Whether the interference was justified

58. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see Weber and Saravia, cited above, § 80)...

69. In conclusion, the Court does not consider that the domestic law at the relevant time 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 did not, as required by the Court’s case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants’ rights under Article 8 was not, therefore, “in accordance with the law”.

70. It follows that there has been a violation of Article 8 in this case."

The court also awarded legal costs against the UK government. There's a brief report on the case in the Guardian. The other mainstream news outlets seem to have missed the decision for the moment.

Update: RTE have picked it up now, as have Reuters. Also possibly more accessible to ordinary mortals than the judgment itself is the press release related to it issued by the Court Registrar.

Update 2: I recommend the articles written by Richard Lamont, who deduced the real purpose of the 'Capenhurst Tower' interception facility at the centre of this case in 1999, available here and here. Thanks to Richard Lamont himself for the alert via the ukcrypto list.

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