EU human rights court gives priority to UK mass surveillance case

Privacy campaigners in the UK may get their day in court if the UK government can find no grounds to dismiss the case

The European Court of Human Rights (ECHR) has fast-tracked a complaint alleging that the U.K. government illegally used Internet and telecommunications networks to systematically spy on its citizens, privacy campaigners said Friday.

In October, U.K. groups Big Brother Watch, Open Rights Group and English PEN together with the German Internet campaigner Constanze Kurz filed a complaint with the human rights court to challenge the legality of Internet surveillance programmes operated by U.K. intelligence agency GCHQ and recently revealed in documents leaked by Edward Snowden. The complaint cited the Prism program, developed by the U.S. National Security Agency (NSA), and GCHQ's Tempora program.

The groups claim that by collecting data on millions of people not under any suspicion, GCHQ has infringed on the privacy rights of not only British but also European citizens.

The court has completed its preliminary investigation and has decided to give priority to the application, it informed the campaigners in a letter dated Jan. 9 and released by the campaigners.

Fast-tracking a case is unusual at the human rights court where only a very small minority of the cases get prioritized, said Daniel Carey, the group's solicitor.

The court has not yet admitted the case, however. It explained in the letter that it has asked the U.K. government to submit written observations on the admissibility and merits of the case before May 2.

In order to determine admissibility, the court has asked the U.K. government whether the groups can claim to be victims of privacy violations under Article 8 of the European Convention, according to the letter.

The campaigners said it also asked the government to "justify how GCHQ's practices and the current system of oversight comply with the right to privacy."

The government may not have to answer that question, though, if it can demonstrate that the groups had not exhausted all domestic remedies for legal redress before bringing the case before the ECHR. The court asked, among other things, whether the group's complaints were raised before the U.K.'s Investigatory Powers Tribunal, a secret court that can investigate complaints about any alleged conduct by, or on behalf of, the intelligence services. It is the only U.K. tribunal to whom complaints about the intelligence services can be directed.

The groups however did not go to the Investigatory Powers Tribunal.

"We did skip," said Carey, adding that despite that he still thinks the groups have a very good chance to get the case admitted to the court.

The ECHR has accepted before that the Tribunal is not an effective remedy that needs to be exhausted when one is challenging the compliance of primary legislation with the European Convention, Carey said, adding that these cases are also outside of the jurisdiction of the Tribunal.

"Our challenge isn't so much to any specific act of the intelligence services, our challenge is to the legislation which governs what they do," Carey said, adding that it would have been pointless to go to the Investigatory Powers Tribunal.

Because the Tribunal is completely secret, it also wouldn't have been practical to bring the case there, Carey said. "One has no right to appeal, one isn't even been told if there is going to be a hearing in your own case. It is not effective even if one was to have a complaint that fell within its jurisdiction," he said.

So far the campaigners have been funding their challenge with £27,279 (US$45,340) raised through crowd funding. This has covered the first stage of the legal challenge and helped develop and maintain the group's website privacynotprism.org.uk. For the next stage, the groups hope to raise £40,000 to cover legal costs.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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