Judgments day
This has been quite a week for British digital rights campaigners, who have won two significant cases against the UK government.
First is a case regarding migrants in the UK, brought by the Open Rights Group and the3mllion. The case challenged a provision in the Data Protection Act (2018) that exempted the Home Office from subject access requests, meaning that migrants refused settled status or immigration visas had no access to the data used to decide their cases, placing them at an obvious disadvantage. ORG and the3million argued successfully in the Court of Appeal that this was unfair, especially given that nearly half the appeals against Home Office decisions before the law came into effect were successful.
This is an important win, but small compared to the second case.
Eight years after Edward Snowden revealed the extent of government interception of communications, the reverberations continue. This week, the the Grand Chamber of the Europgean Court of Human Rights found Britain's data interception regime breached the rights to privacy and freedom of expression. Essentially, as Haroon Siddique sums it up at the Guardian, the court found deficiencies in three areas. First, bulk interception was authorized by the secretary of state but not by an independent body such as a court. Second, the application for a warrant did not specify the kinds of communication to be examined. Third, search terms linked to an individual were not subject to prior authorization. The entire process, the court ruled, must be subject to "end-to-end safeguards".
This is all mostly good news. Several of the 18 applicants (16 organizations and two individuals), argue the ruling didn't go far enough because it didn't declare bulk interference illegal in and of itself. Instead, it merely condemned the UK's implementation. Privacy International expects that all 47 members of the Council of Europe, all signatories to the European Convention on Human Rights, will now review their surveillance laws and practices and bring them into line with the ruling, giving the win much broader impact./
Particularly at stake for the UK is the adequacy decision it needs to permit seamless sharing data with EU member states under the General Data Protection Regulation. In February the EU issued a draft decision that would grant adequacy for four years. This judgment highlights the ways the UK's regime is non-compliant.
This case began as three separate cases filed between 2013 and 2015; they were joined together by the court. PI, along with ACLU, Amnesty International, Liberty, and six other national human rights organizations, was among the first group of applicants. The second included Big Brother Watch, Open Rights Group, and English PEN; the third added the Bureau of Investigative Journalism.
Long-time readers will know that this is not the first time the UK's surveillance practices have been ruled illegal. In 2008, the CJEU ruled against the UK's DNA database. More germane, in 2014, the CJEU invalidated the Data Retention Directive as a disproportionate intrusion on fundamental human rights, taking down with it the UK's supporting legislation. At the end of 2014, to solve the "emergency" created by that ruling, the UK hurriedly passed the Data Retention and Investigatory Powers Act (DRIPA). The UK lost the resulting legal case in 2016, when the CJEU largely struck it down again.
Currently, the legislation that enables the UK's communications surveillance regime is the Investigatory Powers Act (2016), which built on DRIPA and its antecedents, plus the Terrorism Prevention and Investigation Measures Act (2011), whose antecedents go back to the Anti-Terrorism, Crime, and Security Act (2001), passed two months after 9/11. In 2014, I wrote a piece explaining how the laws fit together.
Snowden's revelations were important in driving the post-2013 items on that list; the IPA was basically designed to put the practices he disclosed on a statutory footing. I bring up this history because I was struck by a comment in Albuquerque's dissent: "The RIPA distinction was unfit for purpose in the developing Internet age and only served the political aim of legitimising the system in the eyes of the British public with the illusion that persons within the United Kingdom's territorial jurisdiction would be spared the governmental 'Big Brother'".
What Albuquerque is criticizing here, I think, is the distinction made in RIPA between metadata, which the act allowed the government to collect, and content, which is protected. Campaigners like the late Caspar Bowden frequently warned that metadata is often more revealing than content. In 2015, Steve Bellovin, Matt Blaze, Susan Landau, and Stephanie Pell showed that the distinction is no longer meaningful (PDF in any case.
I understand that in military-adjacent circles Snowden is still regarded as a traitor. I can't judge the legitimacy of all his revelations, but in at least one category it was clear from the beginning that he was doing the world a favor. That is alerting the world to the intelligence services' compromising crucial parts of the world's security systems that protect all of us. In ruling that the UK practices he disclosed are illegal, the ECtHR has gone a long way toward vindicating him as a whistleblower in a second category.
Illustrations: Map of cable data by Greg Mahlknecht, map by Openstreetmap contributors (CC-by-SA 2.0), from the Privacy International report on the ruling.
Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.