UK High Court rejects human rights challenge to bulk snooping powers

Civil liberties campaign group Liberty has lost its latest challenge to controversial UK surveillance powers that allow state agencies to intercept and retain data in bulk.

The challenge fixed on the presence of so-called ‘bulk’ powers in the 2016 Investigatory Powers Act (IPA): A controversial capability that allows intelligence agencies to legally collect and retain large amounts of data, instead of having to operate via targeted intercepts.

The law even allows for state agents to hack into devices en masse, without per-device grounds for individual suspicion.

Liberty, which was supported in the legal action by the National Union of Journalists, argued that bulk powers are incompatible with European human rights law on the grounds that the IPA contains insufficient safeguards against abuse of these powers.

Two months ago it published examples of what it described as shocking failures by UK state agencies — such as not observing the timely destruction of material; and data being discovered to have been copied and stored in “ungoverned spaces” without the necessary controls — which it said showed MI5 had failed to comply with safeguards requirements since the IPA came into effect.

However the judges disagreed that the examples of serious flaws in spy agency MI5’s “handling procedures” — which the documents also show triggering intervention by the Investigatory Powers Commissioner — sum to a conclusion that the Act itself is incompatible with human rights law.

Rejecting the argument in their July 29 ruling they found that oversight mechanisms the government baked into the legislation (such as the creation of the office of the Investigatory Powers Commissioner to conduct independent oversight of spy agencies’ use of the powers) provide sufficient checks on the risk of abuse, dubbing the regime as “a suite of inter-locking safeguards”.

Liberty expressed disappointment with the ruling — and has said it will appeal.

In a statement the group told the BBC: “This disappointing judgment allows the government to continue to spy on every one of us, violating our rights to privacy and free expression.

“We will challenge this judgment in the courts, and keep fighting for a targeted surveillance regime that respects our rights. These bulk surveillance powers allow the state to Hoover up the messages, calls and web history of hordes of ordinary people who are not suspected of any wrongdoing.”

This is just one of several challenges brought against the IPA.

A separate challenge to bulk collection was lodged by Liberty, Big Brother Watch and others with the European Court of Human Rights (ECHR).

A hearing took place two years ago and the court subsequently found that the UK’s historical regime of bulk interception had violated human rights law. However it did not rule against bulk surveillance powers in principle — which the UK judges note in their judgement, writing that consequently: “There is no requirement for there to be reasonable grounds for suspicion in the case of any individual.”

Earlier this year Liberty et al were granted leave to appeal their case to the ECHR’s highest court. That case is still pending before the Grand Chamber.

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