Civil liberties campaigners scored a huge victory on Wednesday when Europe’s highest court ruled that Britain’s sweeping surveillance powers are illegal.
The country is on the verge of adopting what critics say is the most extensive surveillance law to be adopted in the Western world. The Investigatory Powers Act, approved by Parliament last month, enables the British government to undertake the bulk interception of electronic communications of ordinary citizens.
More specifically, it requires Internet and phone companies to keep the records of every call made, online message sent and website visited by customers for 12 months. Public organizations would then be able access these communications, sometimes without a warrant, and also without the individual being made aware they were under surveillance.
The security services argue that mass surveillance of this scale is necessary in order to keep citizens safe during a time of heightened threats, global terrorist attacks and cyberwarfare. But human rights groups have long said that while some surveillance is necessary, the basic privacy of citizens should not be violated in the process.
Following a legal challenge, Britain’s High Court found the surveillance law breached fundamental rights, but the government appealed and the case was referred to the European Court of Justice.
That court upheld the High Court’s decision Wednesday, ruling that the “general and indiscriminate retention” of electronic communications by a government is unlawful and that “targeted retention” can be performed only to fight serious crime.
The decision was made in relation to Britain’s existing Data Retention and Investigatory Powers Act that expires at the end of the year – but it will probably have far-reaching implications for the Investigatory Powers Act.
“Today’s judgment upholds the rights of ordinary British people not to have their personal lives spied on without good reason or an independent warrant,” said civil rights group Liberty’s director Martha Spurrier. “The government must now make urgent changes to the Investigatory Powers Act to comply with this.”
Spurrier added that this was the first major test for the government with regard to human rights and the rule of law since Britain voted to leave the European Union.
“The U.K. may have voted to leave the EU – but we didn’t vote to abandon our rights and freedoms,” she said.
Even though this latest case has been decided by the European court, it is unlikely that the ruling will be affected by Britain leaving the EU, a process known as “Brexit.” Since the ruling was made before the formal withdrawal process has been triggered, it will remain legally binding.
In a strange twist of fate, the case was also the first to be brought forward by lawmaker David Davis, who is now the minister in charge of extricating Britain from the European Union after the country’s vote to leave in June.
He extricated himself from the case after his appointment as Brexit minister by Prime Minister Theresa May, but has been a vocal civil liberties campaigner during his parliamentary career.
The case will now return to Britain’s Court of Appeal where local judges will have to work out how to implement the finding in relation to existing U.K. law.
Tom Watson, deputy leader of the opposition Labor Party, who also championed the case with Davis, hailed Wednesday’s ruling as a resounding victory, saying that surveillance powers should be a matter for judges, not government ministers.
“Most of us can accept that our privacy may occasionally be compromised in the interests of keeping us safe, but no one would consent to giving the police or the government the power to arbitrarily seize our phone records or emails to use as they see fit,” he said.
And Edward Snowden, the former National Security Agency contractor who revealed details about U.S. electronic surveillance programs, also rejoiced at the news.
“Big: EU’s highest court (ECJ) declares UK’s mandatory logging of everyone’s communications to be unlawful,” he tweeted, with an image of Prime Minister May beneath the words “PRY MINISTER.”
Although Wednesday’s ruling is a victory in many ways, some elements of the new act will remain unchanged, including a provision that requires companies with more than 10,000 users to create changes to their encryption services, which would allow the government to access that data, if required.
Boyle is a special correspondent.