U.K. State Surveillance Powers Challenged Under Human Rights Law

The U.K. government is facing a legal challenge to surveillance legislation that was rushed through parliament last year. At the time the Data Retention and Investigatory Powers Bill (now DRIPA) was criticized for granting the government overly broad and draconian powers to retain digital comms data — and for the lack of parliamentary time afforded for proper scrutiny. The bill was given cross-party support, becoming law within just three days after minimal public debate.

A case is being heard in the U.K. High Court today and tomorrow, brought by civil rights campaign group Liberty and two MPs: the Labour Party’s Tom Watson and the Conservative’s David Davis. They are challenging DRIPA on Human Rights grounds — referencing the rights to respect for private and family life, and of protection of personal data.

It was the European Court of Justice that struck down European data retention powers earlier last year, on the grounds that they were overly broad. The secondary twist here is that the Conservative party manifesto contained a pledge to scrap the U.K.’s Human Rights Act and replace it with a British Bill of Rights, potentially severing the formal link with the European Court of Human Rights. So the type of legal challenge being brought against dragnet state surveillance powers today may not be possible in future (although the Tories have not yet set out any formal parliamentary plans for implementing a British Bill of Rights).

Commenting on the legal challenge in a statement, Labour’s Watson said: “The government’s decision to use emergency powers to enable it to spy on citizens shows the rights of the individual need to be strengthened to ensure the state can’t act with impunity. Even MPs are powerless to prevent such powers being enacted.

“The Human Rights Act allows us to challenge those powers in the courts but the Tory Government is intent on tearing up the Act and doing away with the limited legal protection it affords. It is vital that we fight for it to be retained.”

Meanwhile, over the pond in the U.S., politicians have been taking steps to reform bulk data collection powers — which have just culminated in the signing of the USA Freedom Act, which puts limits on the NSA’s powers of bulk data collection of Americans’ telephone records (Europeans’ and other foreigners’ comms data remains fair game, however).

Despite all the debate about surveillance and privacy in the U.S., the newly elected U.K. Conservative government is pushing in an even more hawkish direction on surveillance, with new legislation incoming that looks set to greatly expand data retention powers. And both the Prime Minister and Home Secretary publicly banging an anti-encryption drum with talk of a need to plug state surveillance “capability gaps”.

DRIPA has a sunset clause that expires at the end of 2016, but given the government’s hawkish rhetoric it seems unlikely that the incoming Investigatory Powers Bill will dilute data retention and surveillance capabilities. Quite the opposite.

On today’s legal challenge to DRIPA, Liberty argues that data retained under the law is subject “to an extremely lax access regime” which allows it to be acquired by “hundreds of public authorities” who can then sign off their own access for “a broad range of reasons that have nothing to do with the investigation of serious crime”. It says around 500,000 requests are granted per year, with no requirement that the requests relate to named individuals or premises — “leaving open the possibility of bulk access”.

Earlier this week civil rights group Big Brother Watch released data it obtained via the Freedom of Information Act which revealed that U.K. police forces made more than 733,000 requests for comms data over a three year period, between 2012 and 2014, with the vast majority of these requests being approved. That rate of requests for comms data equates to police making one every two minutes.