New national laws on surveillance and interception have popped up across the world in the past few years in response to technological advances, terrorist attacks and developments in the jurisprudence around the right to private life and the requirement of legality. These have included provisions on international interception but provide little detail on human rights protections.
Changes in the way we communicate globally have provided new challenges as well as opportunities to State agencies’ capabilities to intercept communications. The Snowden revelations along with a number of high profile campaigns like the Privacy International campaign encouraging applications to the UK Investigatory Powers Tribunal (IPT) have highlighted the scope and scale of interception internationally and pointed out areas of concern. But this hasn’t been matched by developments on an international scale to effectively protect privacy. Recent developments in jurisprudence in the UK add further concerns about the usefulness of domestic human rights protections to deal with the international reach of domestic powers to interfere with the right to private life.
New legislation on international interception and surveillance
The law and practice around interception of purely domestic communications on a national level tends to be different to the law and practice of interceptions with an extra-territorial element. When France introduced new laws on surveillance in the summer of 2015, the Conseil Constitutionel rejected the provisions on international interception of electronic communications due to concerns about compatibility with constitutional human rights. In late November 2015 however, following the deadly attacks in Paris, new provisions allowing for interception of international electronic communications were approved as proportionate and compatible with the rights protections in the French Constitution. The laws on surveillance and interception introduced in France in 2015 continue to be challenged and a new complaint brought in May 2016 now hopes to question the legality of the measures before the European Court of Justice.
In the UK, the Investigatory Powers Bill under consideration by the House of Lords this month, like its predecessor, RIPA 2000, includes provisions that assert extra-territorial effect, allow for international co-operation on surveillance and interception measures and provide for the possibility of mass surveillance in relation to external communications. Global communications companies like Google, Apple and Microsoft have raised their concerns about the risks of unilateral assertions of territoriality like those in the IP Bill for their staff and for the development of other similar laws globally. Such legislation in the UK may provide a blue-print for and legitimise similarly intrusive powers in other countries across the world with serious consequences for human rights globally. Following the results of the referendum on membership of the EU, the chances of challenging UK laws before regional courts may be significantly reduced.
Extra-territorial Accountability and Human Rights
Against this backdrop, the recent judgment of the IPT in Human Rights Watch and Others v Secretary of State for the Foreign and Commonwealth Office and Others (judgment of 16 May 2016) raises serious questions about accountability for human rights interferences in the context of extra-territorial interceptions.
In this case, the IPT considered the scope of its jurisdiction to consider complaints under the Human Rights Act 1998 (HRA). Having decided that it could consider the claims of six of the claimants on the basis of the substance of their complaint, the IPT went on to decide whether it could consider claims under the HRA for claimants who were outside the UK at the material time.
The claimants had all submitted claims based on a standard Statement of Grounds provided by Privacy International as part of a campaign to challenge UK law and practice in international interception. Of the five individual claimants the IPT looked at, two were not resident in the UK: one was a US citizen and resident, the other was a national of one Council of Europe state residing in another. Both had submitted a human rights claim as well as a claim based on RIPA. They asserted “a belief that the Respondents have performed a number of actions, including interception, use and storage of "my information and/or communications" and may have received "my information" from the NSA prior to 5 December 2014. In consequence, each claims that his rights under Articles 8 and 10 ECHR have been infringed.”
While it neither confirmed nor denied the existence of the interferences complained of, the Government argued that the UK had no obligation under the ECHR to secure the non-resident claimants’ rights under Articles 8 and 10 ECHR. The basis of this argument was that Article 1 of the ECHR could only extend the jurisdiction of the Convention beyond the territory of the contracting state in exceptional circumstances which didn’t apply in this case.
The IPT rejected the argument that the claimant resident within the Council of Europe could be brought within the jurisdiction by virtue of being within the “éspace juridique” of the ECHR. It felt this would be stretching the idea of jurisdiction in Article 1 ECHR. Similarly, it didn’t accept the argument that the impugned acts had occurred within the territory of the UK. Ultimately, the IPT found that, as a UK Court, it wasn’t bound to go any further than existing ECtHR jurisprudence on the issue and held that it didn’t have jurisdiction to consider the two claims under the HRA although it could still consider the RIPA claims.
These conclusions raise serious concerns. Although the claimants may have been outside the UK, the agencies accused of interfering with their rights would clearly have been acting from within the territory of the UK. This would seem to open the door for a state to act with impunity in relation to human rights as long as the impact of the actions it is taking within its borders is only felt outside its territory.
The scale of the potential for international interceptions by the UK and other governments gives rise to a risk of mass interferences with human rights across borders. The practicalities of those interferences are very different to those considered by the ECtHR in cases such as Bosphorus v Ireland (2005) and Al-Skeini and Others v UK (2011). The IPT thought that the interception of communications across borders did not equate to state agent authority or control or to effective control over an area so as to bring the claims within HRA jurisdiction. If the IPT is correct, this could mean that, for actions that interfere with human rights using technology, signatories to the ECHR can do as they please as long as the impact of their actions is only felt outside their territory. Given the nature of electronic communications and the internet and with technology and international travel continuing to develop, if human rights are to be genuine and effective, this view needs to be challenged.
The need for an international framework
As legislation on international interception and the capacity of states to carry it out continues to multiply across the world, there is clearly a need for an international mechanism that can provide effective control and accountability across borders. The HRW and Others judgment only reinforces that need. The ECJ has provided something of a bulwark against mass violations of data protections and privacy rights in recent years but it looks as though that protection will soon be unavailable to challenge UK laws. The European Court of Human Rights and the protections of the ECHR have similarly been threatened in recent political discourse. Against this backdrop, it has never been more urgent to demand serious proposals for an international framework to protect human rights in the context of international interception and surveillance measures. As states increasingly interfere with our rights on a global scale, only a global framework of protection can be truly effective.
Photo credits: Reuters/Luke MacGregor