The Legality of State Surveillance under

European Convention on Human Rights

and United Kingdom Law
– the Right to Privacy & Interception of
Communications

A dissertation submitted by Jason Chao

on 08 September 2019
to School of Law, SOAS University of London
in partial fulfilment of
the requirements for the degree programme of MA Human Rights Law

(Slightly edited in January 2020 based on the markers’ comments)

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Table of Contents

Introduction ............................................................................................................................................ 5

Privacy ..................................................................................................................................................... 6

The Inception of the Right to Privacy.................................................................................................. 6

Privacy in Britain before the time of Human Rights Act 1998 ............................................................ 7

Privilege........................................................................................................................................... 7

Breach of confidence ...................................................................................................................... 8

Home ............................................................................................................................................... 9

Unwanted publicity ....................................................................................................................... 10

Refusal to legislate on the right to privacy ................................................................................... 11

European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) ... 12

The Right of Privacy after Human Rights Act 1998 (HRA) ................................................................. 14

Surveillance ....................................................................................................................................... 15

European Convention on Human Rights and State Surveillance .......................................................... 18

Klass v Germany – The First State Surveillance Case before ECtHR ................................................. 18

Review of surveillance law in abstracto........................................................................................ 19

Justifications for interference with Article 8 right ........................................................................ 19

Protection from the dangers of surveillance ................................................................................ 20

Balancing individual and community interests ............................................................................. 21

Legality of secret state surveillance .............................................................................................. 21

Malone v the United Kingdom – Legality of UK Surveillance Administrative Practice ..................... 22

Interception – an administrative practice..................................................................................... 22

The notion of “law” ....................................................................................................................... 24

Foreseeability of law ..................................................................................................................... 25

Illegality of interception of communications as an administrative practice ................................ 27

“Metering data” ............................................................................................................................ 27

Weber v Germany – Bulk Interception of Communications ............................................................. 28

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 Untargeted monitoring ................................................................................................................. 28

Surveillance without prior suspicion............................................................................................. 28

Margin of appreciation in national security matters .................................................................... 29

The “Weber safeguards” – no “unfettered power” ...................................................................... 29

Roman Zakharov v Russia – Foreseeability of surveillance capabilities in law ................................. 30

Direct access as a “technical requirement” .................................................................................. 30

Easy circumvention of the warrant requirement ......................................................................... 31

United Kingdom (UK) Surveillance Regime ........................................................................................... 32

Privacy Not a Priority ........................................................................................................................ 32

The Interception of Communications Act 1985 – Codification of Surveillance Practices................. 32

Regulation Investigatory Powers Act 2000 – Obscure Power for Mass Surveillance ....................... 35

The Liberty and Big Brother Watch Cases – Mass Surveillance Challenged ..................................... 38

Regulation Investigatory Powers Act 2016 (RIPA 2016) – “Legal footing” to Mass Surveillance ..... 42

Discussion and Conclusion .................................................................................................................... 44

Bibliography .......................................................................................................................................... 45

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Acknowledgement
I would like to thank my dissertation supervisor Dr Makeen F Makeen for the patient guidance,
advice and tolerance.

I would also like to thank my family and friends who have supported me to pursue a second master’s
degree in the UK.

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Introduction

Technological development is driving people’s need for and awareness of privacy. Technical

development gave the state great capabilities to monitor and control the population. The people’s

interest in privacy and the state’s interest in surveillance unavoidably come into conflict. The United

Kingdom (UK) law protects some private interests but has declined to introduce a generalised right

of privacy. The introduction of European Convention on Human Rights (ECHR), which includes

protection of the right to private life, into the legal order to the UK has shaped the development of

the laws of the UK, including the state surveillance regime.

The UK government has a long history of intercepting communications. UK’s adoption of new

technology to build its surveillance capabilities often outpaces the development of the law. The

legality of many aspects of state surveillance has constantly been challenged in courts. This

dissertation will cover privacy in UK law, the European Court of Human Rights (ECtHR) jurisprudence

on state surveillance and the UK surveillance regime. It focuses on justifications for interference in

private life provided by Article 8(2) of the ECHR and the aspect of interception of communications

and acquisition of communications data to the UK surveillance law.

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Privacy

The Inception of the Right to Privacy

The “right to privacy” is, in fact, ill-defined.1 Many legal systems share the problem of delineating

specific legal interests under the concept of “privacy”.2 The discussion of “privacy” as a legal right

can be traced to an article by Samuel Warren and Louis Brandeis published in Harvard Law Review in

the United States (US) in 1890.3 Warren and Brandeis foresaw the impact of technological

inventions on the people’s desire “to be let alone”.4 In particular, they pointed to the development

of “instantaneous photographs and newspaper enterprise” as potential invaders of “the sacred

precincts of private and domestic life”.5

Warren and Brandeis saw that in the course of history, the definitions of some legal rights have

expanded to afford new protections.6 They thought that the English courts had likewise applied the

ideas of the breach of confidence and property rights to protect one’s “privacy”.7 Based on this

assumption, they argued that the common law would protect individuals’ right to prevent facts

about private life from being made public.8 However, scholars suggest that Warren and Brandeis

misinterpreted the English precedents.9 The legal reasoning in the cases mentioned in Warren and

Brandeis’ article did not provide strong support for an emergence of the right for an individual to

control the information about his or her private life.10

1
Walter F Pratt, Privacy in Britain (Bucknell University Press 1979) 1.
2
Ronald J Krotoszynski, Privacy Revisited: A Global Perspective on the Right to Be Left Alone (Oxford University
Press 2016) 1.
3
ibid 16.
4
Samuel D Warren and Louis D Brandeis, ‘Right to Privacy’ (1890) 4 Harvard L Rev 193, 195.
5
ibid.
6
ibid 194.
7
ibid 207.
8
ibid 205.
9
Pratt (n 1) 19.
10
ibid 34.

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Privacy in Britain before the time of Human Rights Act 1998

There has not been a general “right of privacy” in English law.11 Also, the courts have consistently

rejected the right to privacy in English law as well as remedies for injury to one’s privacy. The

difficulty in defining privacy right may lie in the “emotive content”12 of privacy. The feelings about

the need to hide from others’ curiosity are “irrational”13.

Despite the absence of a general privacy right, some aspects of the law could protect people’s

privacy interests in specific relationships or specific circumstances. These protections are scattered

in different areas of statute law and case law which are not intended to protect privacy.14

Privilege

Solicitors have the privilege not to disclose facts about their clients.15 A privilege here means that

solicitors must not be compelled to reveal the information by the court.16 The purpose of the

privilege is to ensure that solicitors could provide the best possible legal assistance to a client on the

basis of a defendant’s need to obtain the best possible advice from legal advisors.17 Privilege

protects against self-incrimination rather than for privacy.18 However, the privilege applies only to

the information that a solicitor gains in the process of advising his client.19 A solicitor could be

compelled to give evidence about facts that he learns about his client outside the solicitor-client

relationship.20

Attorney-client is the only type of relationship that qualifies for a “privilege” not to disclose facts

about individuals.21 There are other relationships, such as medical doctors-patient and religious

11
‘Report of the Committee on Privacy’ para 83.
12
ibid 57.
13
ibid.
14
ibid 83.
15
Berd v Lovelace (1603) Cary 62, 21 ER 33.
16
ibid; Pratt (n 1) 38.
17
Pratt (n 1) 42.
18
ibid 43.
19
ibid 42.
20
ibid 41.
21
ibid.

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advisor-church goer, that people would believe the existence of such privilege. However, they do

not enjoy the privilege of non-disclosure.22

For priest-penitent, although a judge advised that a spiritual advisor “ought not to” give evidence in

185323, other cases tend to show that communications between a penitent and a priest in

confessions do not enjoy the privilege24. In 1860, a priest who refused to give evidence in court was

guilty of contempt of court.25 For medical doctor-patient, generally, there is also no privilege for

medical doctors not to reveal information about their patients26, except in the case of assisting in

litigation or with contacting a solicitor27.

Breach of confidence

English courts see that there is a special right or duty for people in certain relationships to treat

information about another party confidential on the basis of trust or contract.28 In certain types of

relationships, a party may seek a claim for damages arising from, or an injunction against, another

party’s unauthorised disclosure of information on the basis of breach of confidence or duty.

For customer-service provider, service providers have a duty not to exploit their access to the

customers’ private property for other purposes. Prince Albert v Strange is a case cited by Warren

and Brandeis to justify the emergence of the right of privacy.29 Prince Albert filed an injunction

against the publication of a catalogue that contained his etchings about his private life with Queen

Victoria.30 His etchings were not intended for publication, however, were obtained by a worker at

the printer without authorisation for the purpose of publication.31 The court considered that privacy

22
Greenlaw v King (1838) 1 Beavan 137, 145; 48 ER 891.
23
R v Griffin (1853) 6 Cox CC 219.
24
Greenlaw v King (n 22).
25
R v Hay (1860) 2 Foster and Finlason 4, 9; 175 ER 933.
26
Greenlaw v King (n 22).
27
Pratt (n 1) 47.
28
ibid 40.
29
Warren and Brandeis (n 4) 202.
30
Prince Albert v Strange 64 ER 293, 293.
31
ibid 295.

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is an attribute of property.32 The court saw that there had been an invasion into the domestic life of

the plaintiff.33 However, the injunction was granted on the basis of invasion of property right rather

than private life.34

For employer-employee, employees have a duty not to disclose confidential information of the

business. In 1843, a bank employee was prevented from revealing his employer’s accounts for “an

implied contract” that an employee would not make public what “he learns in the execution of his

duty as a clerk”.35 However, the protection of knowledge gained during employment is not

unlimited. The confidence does not apply to the disclosure of wrongdoings.36

For banker-client, a jury concluded that a banker has a duty “in no way to disclose” the information

about a client’s account to a third party, a creditor in the case, without obtaining the client’s

consent.37

Home

Despite the famous statement from Coke “[t]he house of every one is his castle”, the court

recognises that the privilege is not absolute and does not apply to “any person who flies to his

house” and “the goods of any other […] brought there”.38 Also, sheriffs may be authorised by the

court to break into the house to execute legal processes.39

Although a warrant is required for the police to enter and search private premises, the court tended

to relax the rigidity of the search warrant in favour of the need to discover facts about a crime.40 In

32
ibid 301.
33
ibid 313.
34
ibid 319.
35
Tipping v Clarke (1843) 2 Hare 383, 393; 67 ER 157, 161.
36
Gartside v Outram (1857) 26 LJ Ch 113.
37
Foster v The Bank of London (1862) 3 Foster and Finlason 214, 217; 176 ER 96, 98.
38
Semayne’s Case 5 Coke Rep 91 a.
39
ibid.
40
Pratt (n 1) 56.

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1867 the court allowed the police to inspect items not listed in the warrant during the search as long

as the police see “a prima facie case of wrong”.41

For the interference in the privacy of the home by private entities, in general, the court would not

recognise “a mere invasion of privacy [as] injury”42 and would not grant award damages for injury to

merely feelings about an invasion of privacy43. However, in cases where there is a nexus with

property, the courts might sometimes grant the damages.44 In 1867, a person successfully

complained to the court about a business run by his neighbour conducive to the gathering of a lot of

people in the vicinity of his home.45 The plaintiff used the destruction of “privacy” in his argument

albeit not discussed by the court in the judgement. The court awarded an injunction based on a

nuisance caused by an entertainment business that had attracted a crowd.

Unwanted publicity

The clash between the freedom of press and privacy became a major topic in the discourse of

privacy since the early 20th century.46 The news media has been a source of concern for publicising

gossips about celebrities and public figures. In the advent of photo camera, newspapers could

publish photos of well-known people’s “moments of mental agony”.47

Libel might apply to the press in cases where there is an unauthorised representation of individuals.

In 1931, damages were granted for unauthorised use of a golfer’s name in an advertisement of

chocolate bars.48 Other than libel, there seemed no effective legal remedies against the invasion of

privacy by the press.49

41
Pringle v Bremner and Stirling (1867) 5 M (HL) 55.
42
Jones v Tapling (1862) 12 Common Bench Rep (New Series) 826, 845; 142 ER 1367, 1374.
43
Pratt (n 1) 50.
44
ibid.
45
Walker v Brewster (1867-68) LR 5 Eq 25.
46
Pratt (n 1) 73.
47
ibid 77.
48
Tolley Appellant v JS Fry and Sons, Limited Respondents [1931] AC 333 (House of Lords).
49
Pratt (n 1) 61.

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The General Council of the Press (the Press Council) - a voluntary organisation represented by 25

full-time newspaper workers - was established50 to receive complaints about “the transgression of

reasonable standards” by newspapers and reporters.51 Regarding complaints against the press’

invasion of privacy, the Press Council, in 1953, after carrying out its first investigation, openly

criticised the Daily Mirror’s reports and national polls on the future husband for Princess Margaret.52

In 1972, the government made a conclusion that a reform of the Press Council would be needed as

its non-statutory status did not have the power to impose fines on newspapers.53 However, no

future action was taken by the British government to regulate the press.

Refusal to legislate on the right to privacy

The British government has refused on multiple occasions to introduce the right of privacy into

law.54 Krotoszynski commented that the British parliament was unwilling to create the privacy right

because the creation of the privacy rights would “run against the state itself”.55 In 1972, the

Committee on Privacy published a report on whether the parliament should make such a law. The

report touched on a range of subjects concerning privacy. In its conclusion, the Committee

maintained that there would be no need for a law on privacy. However, the Committee on Privacy

paid attention to the development of “technical surveillance devices”.56 The Committee

recommended criminal sanctions for “surreptitious surveillance by means of a technical device” of

individuals.57 The same approach was followed in 1990 by the Committee on Privacy and Related

Matters, which concluded that there would not be need of a generalised privacy right.

50
ibid 101.
51
‘Report of the Committee on Privacy’ (n 11) 37.
52
Pratt (n 1) 104.
53
‘Report of the Committee on Privacy’ (n 11) para 192.
54
Krotoszynski (n 2) 121.
55
ibid 123.
56
‘Report of the Committee on Privacy’ (n 11) para 505.
57
ibid 563.

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European Convention for the Protection of Human Rights and Fundamental Freedoms

(ECHR)

The United Kingdom ratified the ECHR in 1951.58 Article 8 of the EHCR concerns the right to privacy

which reads as follows.

Article 8 (1): Everyone has the right to respect for his private and family life, his home and his

correspondence.

Article 8 (2): There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society in the

interests of national security, public safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of health or morals, or for the protection

of the rights and freedoms of others.

Article 8 extends beyond the traditional private law conceptions of privacy.59 In the jurisprudence of

ECtHR, private life in Article 8 is a broad concept that encompasses a wide range of interests.60

“Private life” in Article 8 is not limited to one’s “inner circle” but also one’s choice to exclude the

outside world.61

According to Moreham, there are the five subcategories of private life interests under Article 8 in

which three are “freedoms from” and two are “freedoms to”.62 The “freedoms from” are

“interference with physical psychological integrity”, “unwanted collection of information”, and

58
Stephanie Palmer, ‘Human Rights Act 1998: Bringing Rights Home, The’ (1998) 1 CYELS 125, 126.
59
Nicole Moreham, ‘The Right to Respect for Private Life in the European Convention on Human Rights: A Re-
Examination’ [2008] Eur Human Rights L Rev 20, 79.
60
Council of Europe, ‘Guide on Article 8 of the European Convention on Human Rights - Right to Respect for
Private and Family Life’ para 46.
61
ibid 48.
62
Moreham (n 59) 46.

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“environmental pollution”.63 The “freedoms to” are the development of one’s identity and personal

autonomy.64

The ECtHR considers that the purpose of Article 8 is to ensure the development of one’s personality

without outside interference in relation to other human beings.65 Therefore, the concept of private

life in Article 8 extends to aspects of “personality identity”, namely an individual’s name, photos, and

physical and moral integrity.66

The control of the data of and about an individual is a recurring theme in the aspect of privacy to

Article 8. Article 8 concerns not only the right to remain in solitude but also the development of

one’s personality “in relations with other human beings”.67 The ECtHR considers that one’s private

life takes places not only at home or on private premises but also in public places.68 The collection,

use, storage, confidentiality, access to and disclosure of personal information fall within Article 8 of

ECHR. The ECtHR ruled that Article 8 applies to the states’ establishment of databases of sex

offenders and criminal suspects. In the absence of regulation and safeguards against abuse,

indiscriminate collection of data in the name of public security does not comply with Article 8.69

One’s caution data which have a long-lasting impact on one’s employment prospects, may not be

retained indefinitely and subsequently be disclosed.70 An individual has the right to have access to

information about one’s parents, origins, childhood and early development.

Although Article 8 is worded like a negative obligation for the state, the ECtHR notes the aspect of

positive obligations to Article 8 for the state to protect individuals from interference in Article 8

rights by private parties.71

63
ibid.
64
ibid.
65
Council of Europe (n 60) para 101.
66
ibid.
67
ibid.
68
ibid 102.
69
ibid 121.
70
ibid 125.
71
ibid 3.

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The Right of Privacy after Human Rights Act 1998 (HRA)

Before the enactment of HRA, the application of ECHR in the UK was indirect. Individuals could not

argue for their rights under the ECHR in the courts of the UK.72 Those who need to claim a right

under ECHR must bring the case to the ECtHR.73 The HRA partially incorporated the ECHR into the

domestic law of the UK.74

The HRA requires primary legislation and subordinate legislation of the UK to be interpreted as

possible as compatible with ECHR rights.75 Also, the HRA requires UK courts to consider the legal

authority of “judgment, decision, declaration or advisory opinion” of the ECtHR.76 However, HRA

does not empower courts to invalidate a domestic law in conflict with the ECHR.77 A court may

make a “declaration of incompatibility” it if discovers an incompatibility.78 However, the

declarations do not affect the validity and enforcement of the disputed domestic law.79 The

declaration serves to facilitate legislative consideration to revise the law to remove the

incompatibility.80

Through the HRA, the privacy rights under ECHR are incorporated into UK law.81 However, the

courts still do not see there is a tort of invasion of privacy.82 In Wainwright v Home Office, the

plaintiff sought damages for strip search that she and her son had endured during a visit to prison.

Her counsel argued that Article 8 of ECHR would require the extension of the law of tort to giving

remedies for “any kind of distress caused by an infringement of the right of privacy.”83 The court

rejected this argument for two main reasons. First, the judge warned against the “high-level

72
Palmer (n 58) 125.
73
ibid 126.
74
ibid 128.
75
Human Rights Act 1998 s 3.
76
ibid 2.
77
European Convention on Human Rights s 4.
78
ibid.
79
ibid.
80
Krotoszynski (n 2) 124.
81
ibid 141.
82
Wainwright v Home Office [2004] 2 AC 406 [35].
83
ibid 11.

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generalisation” of the right of privacy as the idea of “invasion of privacy” had to be broken down

into many “loosely-linked torts” in the US.84 English law is unwilling to formulate high-level

principles like privacy in fear of introducing uncertainty into the law.85 Second, the jurisprudence of

the ECtHR does not show that a state party must introduce “some high level principle of privacy” to

comply with Article 8 of the EHCR.86 The court argued that the “adequate remedy” exists in English

law in specific cases for the violation of the rights guaranteed under Article 8(1) of the ECHR.87

Moreover, the Wainwright case and the HRA concern public authorities’ obligations.88 If a general

privacy tort were created, the tort would be applicable to infringements by private individuals.89

Despite the non-recognition of a general privacy tort, HRA aided the development of “a tort of

misuse of private information” and “reasonable expectation of privacy”.90 In the landmark case of

Campbell v MGN Limited, a model successfully sought damages for Daily Mirror’s publication of

photos of her receiving treatment for narcotic addiction.91 The court expanded the breach of

confidence, without relying so much on the relationship between the subject and the publisher92, to

the public dissemination of private information.93

Surveillance

Surveillance is defined as the collection of data for the purpose of exerting control.94 The wish “to

control the thoughts, behaviours and actions” of other people can be traced to “the dawn of

humanity”.95 Surveillance is often misunderstood as “new”.96 There are “high-tech” as well as “low-

84
ibid 18.
85
ibid 27.
86
ibid 32.
87
ibid.
88
ibid 34.
89
ibid.
90
Krotoszynski (n 2) 128.
91
Campbell v MGN Ltd (No 2) [2005] 1 WLR 3394, 3395.
92
Campbell v MGN Ltd [2004] 2 AC 457 [147].
93
ibid 166.
94
Kees Boersma and others, Histories of State Surveillance in Europe and Beyond (Routledge 2014) 2.
95
Marie D Jones and Larry Flaxman, Mind Wars: A History of Mind Control, Surveillance, and Social Engineering
by the Government, Media, and Secret Societies (Red Wheel/Weiser 2015) 17.
96
Boersma and others (n 94) 33.

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tech” means to achieve surveillance.97 In the past, governments did not have the means to

“penetrate into citizens’ private lives very deeply”.98 Technological development is closely linked to

the capability of government surveillance.99

Alan Westin identified three forms of surveillance conducted by public authorities: physical,

psychological and data.100 Physical and psychological surveillance methods are active approaches.

Deploying active watchers are expensive and can only apply to a limited number of targets.101 On

the other hand, data surveillance is a passive approach but is very scalable. Accumulating data

about individuals may inform watchers of many things about those individuals.

In the early 20th century, British companies controlled telecommunication infrastructures in many

parts of the world.102 These companies gave the British government access to the communications

transmitted on their cables to gain intelligence and exercise censorship for the protection of the

interests of the British Empire.103 Today, the UK government openly acknowledges that the

interception of communications is a means of secret surveillance used by law enforcement and

intelligence agencies to fight crimes and protect national security in the UK.104

As technology advances, people’s lives are going digital. This development also means an

unprecedented chance for governments to monitor the lives of the population at greater depth.

Some of the governments’ technical capabilities to intrude into the private lives of the people have

raised serious concern. In 2013, former US National Security Agency (NSA) contractor Edward

Snowden revealed a series of documents about the surveillance capabilities of the US and UK

97
ibid 35.
98
ibid 4.
99
ibid.
100
Ian J Lloyd, Information Technology Law (Oxford University Press 2017) 19.
101
ibid.
102
Gordon Corera, Cyberspies: The Secret History of Surveillance, Hacking, and Digital Espionage (Pegasus
Books 2016) 202.
103
ibid.
104
The Home Department, ‘INTERCEPTION OF COMMUNICATIONS IN THE UNITED KINGDOM - A
CONSULTATION PAPER’ (1999) 1.

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governments.105 The Guardian - the newspaper that worked with Snowden to disclose the NSA

materials - reported that the Government Communications Headquarters (GCHQ) “tapped into”

more than 200 Internet fibre-optic cables in the UK to collect “recordings of phone calls, the content

of email messages, entries on Facebook and the history of any internet user's access to websites” in

an operation codenamed “Tempora”.106 The GCHQ used “innovative” technology to store a very

high volume of data syphoned from the cables for up to 30 days for analysis. The “PRISM” system

of the US gave the NSA access to the servers of popular US-based online service providers, namely,

Google, Apple, Facebook, Skype and Microsoft.107 The NSA could use PRISM to search stored

communications and intercept real-time communications. The Guardian reported that the GCHQ

also had access to the US’ PRISM system since 2010 and had obtained intelligence materials through

that system.108 The Guardian immediately raised concern that “PRISM would […] allow GCHQ to

circumvent the formal legal process [in the UK] required to seek personal material from an internet

company […]”.109

105
Ewen MacAskill and Gabriel Dance, ‘NSA Files: Decoded’ The Guardian (2013)
<https://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-
decoded>.
106
Ewen MacAskill and others, ‘GCHQ Taps Fibre-Optic Cables for Secret Access to World’s Communications’
The Guardian (21 June 2013) <https://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-
communications-nsa>.
107
The Guardian, ‘NSA Prism Program Slides’ The Guardian (1 November 2013)
<https://www.theguardian.com/world/interactive/2013/nov/01/prism-slides-nsa-document>.
108
Nick Hopkins, ‘UK Gathering Secret Intelligence via Covert NSA Operation’ The Guardian (7 June 2013)
<https://www.theguardian.com/technology/2013/jun/07/uk-gathering-secret-intelligence-nsa-prism>.
109
ibid.

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European Convention on Human Rights and State Surveillance

Since the late 1970s, the European Court of Human Rights (ECtHR) has dealt with cases in which

state surveillance measures – whether administrative or legislative – are challenged for breach of

Article 8 of European Convention for the Protection of Human Rights and Fundamental (ECHR). The

right set forth in Article 8 of ECHR is not absolute. Public authorities may interfere with one’s

exercise of Article 8 right in certain exceptional circumstances. Paragraph 2 of Article 8 of the ECHR

provides the following grounds for justified interference:

“in accordance with the law and is necessary in a democratic society in the interests of

national security;

public safety or the economic well-being of the country;

the prevention of disorder or crime;

for the protection of health or morals; or

for the protection of the rights and freedoms of others.”

Klass v Germany – The First State Surveillance Case before ECtHR

Klass v Germany is a landmark case on state surveillance decided by ECtHR in 1978. The ECtHR

addressed some important questions about state surveillance in relation to Article 8 of ECHR.110

Paragraph 1 of Article 1 of the German Act of 13 August 1968 on Restrictions on the Secrecy of the

Mail, Post and Telecommunications111 (also referred to as “G-10”) provided that public authorities

were entitled to open the mail, post and telecommunications to safeguard against “imminent

dangers” threatening “the free and democratic constitutional order or the existence or security of”

the Federal Republic of Germany. Paragraph 5 of the same article provided that “the person

110
Ilina Georgieva, ‘The Right to Privacy under Fire Foreign Surveillance under the NSA and the GCHQ and Its
Compatibility with Art. 17 ICCPR and Art. 8 ECHR’ (2015) 31 Utrecht J Intl & Eur L 104, 116.
111
Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses (Gesetz zu Artikel 10 Grundgesetz)
(G 10) Vom 13. August 1968.

18 / 48
concerned is not to be informed about restrictive measures”112. Five German lawyers complained

to the European Commission of Human Rights (EComHR) that interception of communications

without notifying the persons affected was against Articles 6, 8 and 13 of ECHR.

Review of surveillance law in abstracto

The German government contested that the applicants, who were lawyers themselves, were not

“victims” within the meaning of Article 25 of the ECHR of 1950 because they had not established “an

individual violation”.113 The German government insisted that no surveillance measure under the

impugned law had been applied on the applicants.114 However, both the EComHR and the ECtHR

accepted that the applicants were “victims” in the context of “secret measures”.115 The character of

secret measures made it impossible for individuals to prove the existence of such measures.116 The

decision on victimhood is important because, in principle, the ECtHR does not accept actio popularis

litigation117. Generally speaking, individuals cannot claim to be victims of violation of ECHR rights by

virtue of “the mere existence of a law”.118 This decision made it possible for individuals to challenge

the “the mere existence of secret measures” or “legislation permitting secret measures” before the

ECtHR.119

Justifications for interference with Article 8 right

Despite the applicants’ allegation of violation of multiple ECHR articles, the ECtHR considered that

Article 8 was central in this case.120 The ECtHR recognised that the surveillance measures permitted

by G-10 amounted to an interference with an individual’s right to “respect for private life” and

“[respect for] correspondence” in paragraph 1 of Article 8 of the ECHR.121 Then, the ECtHR

112
“über Beschränkungsmaßnahmen ist der Betroffene nicht zu unterrichten”
113
Klass and others v Germany (1979-80) 2 EHRR 214 [30].
114
ibid 37.
115
ibid 34.
116
ibid.
117
Council of Europe, ‘National Security and European Case-Law’ (2013) para 8.
118
Klass and others v Germany (n 113) para 33.
119
ibid 34.
120
ibid 35.
121
ibid 41.

19 / 48
considered whether the interference was justified on the grounds provided by Article 8(2).122 Firstly,

the ECtHR observed that G-10 fulfilled the “in accordance with the law” requirement as it had been

enacted by the German parliament. Secondly, the ECtHR found that the aim of G-10 was to

“safeguard national security and/or to prevent disorder”.123 Thirdly, the ECtHR observed that states

may have to resort to secret surveillance to effectively counter the threats posed to “democratic

societies” by “highly sophisticated forms of espionage and by terrorism”.124 “The means” provided

by G-10 were “within the bounds of what is necessary in a democratic society”.125 Fourthly, the

ECtHR stressed that a state’s discretion to subject an individual to secret surveillance is not

unlimited.126 “Adequate and effective guarantees against abuse” must exist.127

Protection from the dangers of surveillance

The ECtHR recognised the dangers inherent in state surveillance. 128 A law made on the ground of

defending democracy may end up “undermining or even destroying democracy”.129 Therefore, the

ECtHR had to examine whether the G-10 had sufficient safeguards against abuse. The G-10 laid

down a procedure for an authority to apply for secret surveillance orders with the approval of

officials of higher ranks.130 Also, an order would only be approved in limited circumstances such as

investigations into “serious criminal acts” or other investigative methods “without prospects of

success”.131 Despite the exclusion of the judiciary organ from the process, officials “qualified for

judicial office” would do the “initial control”.132 The bodies tasked with subsequent control and

review were appointed by members of the German federal parliament Bundestag.133

122
ibid 42.
123
ibid 46.
124
ibid 48.
125
ibid 46.
126
ibid 49.
127
ibid 50.
128
ibid 49.
129
ibid.
130
ibid 51.
131
ibid.
132
ibid 52.
133
ibid 53.

20 / 48
The ECtHR admitted that the possibility of abuse by dishonest officials could not be eliminated

entirely. The purpose of ECtHR was to review the likelihood of abuse and the safeguards against

such abuse.134

Balancing individual and community interests

The ECtHR recalled that it was the affordance of the social background that enabled the states to

provide protection of human rights through the conclusion and ratification of the ECHR, as in the

“Belgian Linguistic” case.135 The protection of individual rights relied on not only the contracting

states’ will but also the “social and technical developments in our age” that offered “possibilities for

regulating the exercise of these rights”.136 The ECtHR saw that the ECHR “implies a just balance”

between the respect for fundamental human rights and “the general interest of the Community”.137

So, there is a need to strike a balance between individual rights and the interest of a democratic

society.138

Legality of secret state surveillance

The ECtHR agreed with the German government that subsequent notification to the persons under

surveillance is unnecessary if the notification would jeopardise the “efficacy” and “long-term

purpose” of secret surveillance.139

The ECtHR found interference with the people’s right under Article 8(1) of the EHCR caused by G-10

fell within the exceptions of “in accordance with the law and [being] necessary in a democratic

society in the interests of national security” in Article 8(2) of the ECHR. 140 The ECtHR found no

breach of Article 8 of ECHR.141

134
ibid 59.
135
‘RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM’ v
BELGIUM (1968) 1 EHRR 252 [5].
136
ibid.
137
ibid.
138
Klass and others v Germany (n 113) para 59.
139
ibid 58.
140
ibid 43, 60.
141
ibid 60.

21 / 48
The ECtHR settled some important questions about state surveillance in relation to the ECHR.

Firstly, the “mere existence of legislation” that presents a “menace of surveillance” affecting users’

free interaction using communication services constitutes an interference with the right to “private

life” and “correspondence” in Article 8(1) of ECHR.142 Secondly, measures of secret surveillance

carried out states to protect democratic societies fall under exceptional conditions of “necessary in a

democratic society in the interests of national security” and “for the prevention of disorder or

crime” in Article 8(2) of ECHR.143 Thirdly, for a state surveillance regime to comply with Article 8(2)

of ECHR, there must be “guarantees against abuse”144 and effective remedies145.

Malone v the United Kingdom – Legality of UK Surveillance Administrative Practice

Interception – an administrative practice

The UK government’s practice of opening postal correspondence for inspection has been publicly

known “from early times”.146 The origin of such authority is “obscure”.147 By the 1980s, there had

not been clear statutory provisions in the UK law governing the interception of postal and telephone

communications.148 To intercept communications, the police would have to apply for a warrant

issued by the Home Department. However, the procedure is “a practice” prevailed at the time

rather than expressly codified in law.149 The interception of the content of telephone calls by the

British police for the purpose of criminal investigation was challenged before the ECtHR in the case

of Malone v UK. 150 The applicant, who was a defendant in a criminal case, noticed that the details

of one of his telephone calls had appeared in the notebook of the police officer in charge of the

142
Georgieva (n 110) 116; Klass and others v Germany (n 113) para 37.
143
Klass and others v Germany (n 113) para 48.
144
ibid 50.
145
ibid 68.
146
Malone v the United Kingdom (1991) 13 EHRR 448 [24].
147
ibid.
148
ibid 20.
149
ibid 24; ibid 73.
150
Malone v the United Kingdom (n 146) para 13.

22 / 48
investigation.151 The police had obtained a warrant for the interception of the applicant’s phone

calls.152

The UK government argued that the executive power to intercept communications was vested in

section 80 of Post Office Act 1969 (POA 1969) which imposed an obligation on the Post Office. The

provision reads as follows.

“A requirement to […] inform designated persons holding office under the Crown concerning

matters and things transmitted or in course of transmission by means of postal or

telecommunication services provided by the Post Office […]”.

Moreover, section 58 (1) of the Post Office Act 1953 (POA 1953), which was still in force, provided

that Post Office workers who delay or detain postal package would commit a criminal offence unless

they do so in order to comply with a warrant.153

At the time POA 1969 was passed, the Post Office was a governmental body providing postal and

telecommunication services.154 Later, in the early 1980s, through the British Telecommunications

Act 1981, the Post Office was detached from the government and was divided into two separate

entities responsible for mail and telecommunication services respectively.155 The British

Telecommunications Act 1981 did not alter the effect of provisions of POA 1969 concerning

interceptions.156

On the matter of the government’s use of executive power to intercept communications, the UK

Parliament published a “report” with some recommendations on the procedures in 1957. The then

government “accepted” the recommendations and made some change to the procedure.157

151
ibid 14.
152
ibid.
153
ibid 25.
154
ibid 23.
155
ibid.
156
ibid.
157
ibid 21.

23 / 48
The notion of “law”

The ECtHR examined whether the interference was “in accordance with the law” and “necessary in a

democratic law” under Article 8(2) of ECHR. The ECtHR discussed the notion of “law”. The ECtHR

recalled its judgement in Sunday Times v the UK in which the word “law” in “prescribed by law”

“covers not only statute [law] but also unwritten law”.158 The drafters of ECHR did not intend to

exclude the rules created under English common law from the idea of “law” in the clause

“prescribed by law”.159

The expression “prescribed by law” exists in Articles 9(2), 10(2) and 11(2) of the ECHR. The exact

expression in Article 8(2) is “in accordance with the law” but not “prescribed by law”. The ECtHR

noted that the expressions of “in accordance with the law” and “prescribed by law” in the English

text shared the same expression “prévues par la loi” in the French text of ECHR.160 Since English and

French texts are equally authentic, the ECtHR must adopt an interpretation which reconciles “as far

as possible” to achieve the object of the ECHR.161 So, the interpretation of the word “law” in

“prescribed by law” in other articles of ECHR also applies to “in accordance with the law” in Article

8(2) of ECHR.162

In Sunday Times v the UK, the ECtHR listed two requirements for the expression “prescribed by law”

163
as follows.

“Firstly, the law must be adequately accessible: the citizen must be able to have an

[adequate] indication [of] […] the legal rules applicable to a given case.

158
The Sunday Times v the United Kingdom (1979-80) 2 EHRR 245 [47]; Malone v the United Kingdom (n 146)
para 66.
159
The Sunday Times v the United Kingdom (n 158) para 47.
160
ibid 48.
161
ibid.
162
Malone v the United Kingdom (n 146) para 66.
163
The Sunday Times v the United Kingdom (n 158) para 49.

24 / 48
 Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient

precision to enable the citizen to regulate his conduct […] to foresee […] the consequences

which a given action may entail.”

The ECtHR nonetheless recognised that “absolute certainty” about consequences is “unattainable”

as “excessive rigidity” of the law would hold the law back from adapting to “changing

circumstances”.164 Therefore, vagueness in the law is tolerated to some extent.

The ECtHR accepted that there was legal basis for “the settled practice” of intercepting of postal and

telephone communications in pursuant to a warrant approved by the Secretary of State.165

Foreseeability of law

The ECtHR emphasised that the purpose of intercepting communications is not to control the

conduct of individuals.166 In the special contest of secret surveillance, the foreseeability of law

should not enable individuals to change their conduct to frustrate police investigation efforts.167 The

ECtHR examined whether the domestic law on interception of communication had “reasonable

precision in accessible legal rules” that define the scope of the discretionary power granted to the

authorities.168

There were two questions about the “precision”. First, the ECtHR wanted to ascertain whether

interception of communications by the Post Office for the police could only be done through a

warrant.169 The applicant contended that the use of word “requirement” in section 80 of POA 1969

meant that the Post Office might also intercept mail and telephone calls voluntarily for the police in

the absence of a warrant.170 The applicant argued that “a requirement” did not in itself make

164
ibid.
165
Malone v the United Kingdom (n 146) para 69.
166
ibid 67.
167
ibid.
168
ibid 70.
169
ibid.
170
ibid 71.

25 / 48
warrantless interception “illegal”.171 However, the ECtHR agreed with the UK government that the

criminal offence created in section 58 (1) of the POA 1953 for detaining or delaying a mail parcel

effectively made warrantless interception illegal.172 Second, the ECtHR wanted to know under what

circumstances a warrant might be issued and executed.173 The UK government submitted that a

warrant issued pursuant to section 80 of POA 1969 must be addressed to the Post Office and must

contain the name, the address, the telephone number and a time-limit for the interception.174 A

warrant would only be issued if the alleged offence was “really serious”.175 Also, the UK government

argued that detailed procedures governing interception of communications were in place.176 The

public had access to the procedures through the reports published by the UK parliament.177

The ECtHR observed that the arrangements for the issue of warrants are largely “administrative

practice”. The “purpose and manner” of interception were “matters of administrative discretion”

without any statutory restriction on them.178 The ECtHR pointed out a piece of evidence suggesting

that the UK government knowingly kept these arrangements not incorporate in legislation.179 The

ECtHR observed that the procedures concerning interception of communications were “obscure”

and open to varied interceptions.180 Nonetheless, the ECtHR challenged the concept of “serious

crime” for the purpose of issuing an interception warrant. The scope of “serious crime” was

expanded since the passage of POA 1969 without going through the UK parliament.181

171
ibid.
172
ibid.
173
ibid 70.
174
ibid 73.
175
ibid 42.
176
ibid 79.
177
ibid.
178
ibid 75.
179
ibid 78.
180
ibid 79.
181
ibid 76.

26 / 48
Illegality of interception of communications as an administrative practice

The ECtHR concluded that the practice of intercepting communications by the UK government and

the release of metering data to the police were not “in accordance with law” under Article 8(2) of

ECHR. Surveillance procedures that primarily rest on administrative practice without limit set by the

law are incompatible with ECHR. Since secret surveillance measures are hidden from the sight of

individuals in question or the public, the law that grants “unfettered power” to the executive would

be “contrary to the rule of law”.182

“Metering data”

The ECtHR also discussed the surveillance practice known as “metering”. “Metering” refers to the

use of devices to record the telephone numbers dialled and the times and durations of telephone

calls but not including the content of the conversations.183 The ECtHR considered that “metering is

[…] distinguished from the interception of communications”.184 However, the ECtHR saw that the

disclosure of data obtained from metering by the service providers to the authorities would

constitute an interference with Article 8 right.185 Although the police did not have the power to

compel Post Office to provide such data, in practice, the Post Office “voluntarily” provided metering

data to the police upon request.186

The “distinction” between acquisition of metering data and interception of communications implied

that metering data would not need the same level of safeguards as those for communications.187

However, control of the release of metering data should be put in place to comply with Article 8 of

ECHR.188

182
ibid 68.
183
ibid 83.
184
ibid 33.
185
ibid 84.
186
ibid 87.
187
Ian J Lloyd, ‘The Interception of Communications Act 1985’ (1986) 49 The Modern L Rev 86, 92.
188
ibid.

27 / 48
Weber v Germany – Bulk Interception of Communications

Untargeted monitoring

The new version of the G-10 law was challenged again before ECtHR in the case of Weber v

Germany. The G-10 law was amended189 by Federal Law of 28 October 1984 on Fight Against Crime

to allow for interception of communications without named targets.190 “Strategic monitoring”

measures relied on a list of “catchwords”, instead of identified individual targets, to monitor

telephone calls.191 The applicants complained that the amend G-10 law violated Article 8 of the

ECHR.192 They alleged that the amended G-10 law would entitle the German intelligence service to

“monitor all telecommunications within its reach without any reason or previous suspicion”.193 The

applicants also pointed out that the technical advancement, in particular, the “automatic

surveillance” technology, had made it possible for the authorities to identify the persons on

telephone calls without geographical restrictions.194

Surveillance without prior suspicion

The ECtHR recognised that monitoring the phone calls of persons without prior suspicion constituted

“a fairly serious interference” with ECHR Article 8(1) right.195 However, the ECtHR noted the

purposes of the data obtained through strategic monitoring were the prevention and prosecution of

“serious criminal offences” enumerated in section 3(3) of the amended G-10 law.196 The ECtHR was

satisfied that the purposes of strategic monitoring were “very limited”.197

189
Weber and Saravia v Germany (2008) 46 EHRR SE5 [18].
190
Vera Rusinova, ‘A EUROPEAN PERSPECTIVE ON PRIVACY AND MASS SURVEILLANCE AT THE CROSSROADS’
[2019] National Research University Higher School of Economics Working Papers 3.
191
Weber and Saravia v Germany (n 189) para 32.
192
ibid 63.
193
ibid 111.
194
ibid.
195
ibid 125.
196
ibid 126.
197
ibid.

28 / 48
Margin of appreciation in national security matters

The ECtHR recognised that the contracting states have a “fairly wide margin of appreciation” in

deciding the means to protect the interests of national security.198 Nonetheless, as similar as in Klass

v Germany, the ECtHR was satisfied that strategic monitoring measures had adequate safeguards

against abuse and thus fulfilled the exception of being “necessary in a democratic society in the

interests of national security and/or for the prevention of disorder or crime” in Article 8(2) of

ECHR.199 The ECtHR dismissed the complaint about a breach of the applicants’ Article 8 right for

being “manifestly ill-founded”.200

The “Weber safeguards” – no “unfettered power”

Weber v Germany is another important case in the jurisprudence of ECtHR on state surveillance.

The “in accordance with the law” requirement concerns not only “some basis in domestic law” but

also “the quality of the law”.201 Due to the dangers of secret surveillance, it would be against the

rule of law for a piece of legislation granting “unfettered power” to the executive to carry out

surveillance.202 The scope of the discretionary that the executive may exercise must be written with

“sufficient clarity” in the law to protect individuals against arbitrary interference.203 The ECtHR

consolidated the requirements for the minimum safeguards against the abuse which should be laid

down in legislation as follows.204

“the nature of the offences which may give rise to an interception order;

a definition of the categories of people liable to have their telephones tapped;

a limit on the duration of telephone tapping;

the procedure to be followed for examining, using and storing the data obtained;

198
ibid 106.
199
ibid 137.
200
ibid 138.
201
ibid 84.
202
ibid 94.
203
ibid.
204
ibid 95.

29 / 48
 the precautions to be taken when communicating the data to other parties; and

the circumstances in which recordings may or must be erased or the tapes destroyed”

Roman Zakharov v Russia – Foreseeability of surveillance capabilities in law

Direct access as a “technical requirement”

In the case of Roman Zakharov v Russia, although Russian law ostensibly had detailed procedures

governing interception of the communications, the ECtHR did not consider it compatible with ECHR

for the extent of discretionary power. Section 2 of Operational Search Activities Act of 12 August

1995 (OSAA) of Russia authorised the interception of communications by the authorities for fighting

crimes and obtaining information about activities “endangering the national, military, economic or

ecological security” of Russia.205 Section 64(2) of Communications Act of 7 July 2003 of Russia

imposed obligations on communication service providers to run their services using network

equipment in compliance with the “technical requirements” developed by the Russian

government.206 Also, service providers must keep any knowledge of the “tactics” used by law

enforcement agencies confidential.207 Order no. 70 - an order issued under section 64(2) - required

communication service providers in Russia to install equipment known as “the SORM” on their

networks.208 Through SORM, Russian law enforcement agencies could remotely specify interception

subjects, manage interceptions and collect the data.209 The order further required that the

interception and data transmission activities could be logged.210 According to Order no. 130,

communications service providers did not have to be informed of acts of government interceptions

and the relevant judicial orders.211 Moreover, the OSAA did not provide a format of interception

205
Roman Zakharov v Russia (2016) 63 EHRR 17 [26].
206
ibid 111.
207
ibid.
208
ibid 116.
209
ibid.
210
ibid 120.
211
ibid 125; ibid 126.

30 / 48
orders. In practice, Russian courts could use the OSAA to approve orders to intercept

communications in an area without specifying a target.

Easy circumvention of the warrant requirement

The applicant complained that the whole secret interception system, especially Order no.70 and the

SORM which gave the Russian authorities “direct and unrestricted access” to “all communications of

all users” 212, was in violation of Article 8 of ECHR. The applicant pointed out that Order no.70 “had

never been officially published” and thus “not accessible to the public”.213 The “no logging”

requirement made the actual surveillance activities obscure from review and supervision.214 In

addition, the applicant speculated that there had been rampant abuse of the secret surveillance

regime by Russian officials.215 The applicant submitted news reports of officials taking bribes to

carry out unauthorised interceptions for politicians and businesspersons as well as leaked transcripts

of telephone conversations between politicians.216

The ECtHR observed that the requirement of judicial authorisation might be easily circumvented in

practice because of Russian authorities’ direct access to the communication networks.217 The lack of

clarity of the law allowed for an expansive surveillance system.218 The ECtHR ruled that the Russian

surveillance regime did not constraint the interference to an extent “necessary in a democratic

society” in Article 8(2) of ECHR.219

212
Roman Zakharov v Russia (n 205) para 169.
213
ibid 180.
214
ibid 203.
215
ibid 197.
216
ibid.
217
ibid 302.
218
ibid.
219
ibid 304.

31 / 48
United Kingdom (UK) Surveillance Regime

Privacy Not a Priority

The development of the surveillance regime of the UK is closely related to the European Convention

on Human Rights (ECHR). Initially, despite judgement of the European Court of Human Rights

(ECtHR) in Malone v UK, the UK government insisted that the existing safeguards against abuse in

the form of administrative procedures would provide adequate protection of civil liberty.220

However, to avoid further litigation, through the enactment of Interception of Communications Act

1985 (ICA 1985), the UK government laid down the procedures of interception of communicates in

statute law and introduced new safeguards and supervision mechanisms.221

Scholars noted that the ICA 1985 was just a product of “a minimalist interpretation” of UK’s

obligations under ECHR.222 The existing administrative practices were just transposed into statute

law without substantial changes.223

The Interception of Communications Act 1985 – Codification of Surveillance Practices

Section 1 of ICA 1985 provided a general prohibition of unauthorised interception of

communications on telecommunication and postal networks backed by criminal sanction.

Compared with the POA 1953, the prohibition on the basis of Section 58 (1) was narrower and

applied only to “postal packet” and Post Office workers [acting] “contrary to his duty”.

Section 2 of ICA 1985 listed the necessary conditions in which the Secretary of State might issue a

warrant authorising interception of communications. The subsections in section 2 of ICA 1985 are as

follows.

220
Iain Cameron, ‘Telephone Tapping and the Interception of Communications Act 1985’ (1986) 37 N Ir L Q
126, 130.
221
ibid.
222
ibid 149.
223
ibid.

32 / 48
 “(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime; or

(c) for the purpose of safeguarding the economic well-being of the United Kingdom.”

Cameron observed that the reference to “national security” in subsection (a) could be broadly

interpreted in British law.224 Conceptually, a specific arrangement of social, political and economic

powers could be seen as part of “the state”. Any intention and activity to change this arrangement

might be considered “a threat to the state”.225 Subsection (a) did not necessarily contemplate a

criminal conduct. Lawful acts like peaceful demonstrations and strikes might fall into the scope of

subsection (a).226 The security agency would lawfully obtain a warrant from the Secretary of State

to carry out secret surveillance on trade unions and political groups that advocated “radical political

or economic change of British society”.227 The “serious crime” referred to in subsection (b) was

defined as an offence punishable to an imprisonment of 3 years or more or organised crime with the

use of violence.228 The subsection (c) condition, which entails “the economic well-being of the [UK]”,

applied only to “acts or intentions of persons outside the British Islands”.229

Section 3(1) of ICA 1985 provided the format of warrants for interception of communications. For

internal communications (as opposed to the concept of “external communications”), the name of

the subject under surveillance or a set of premises must be specified. For “external

communications” (meaning “communication[s] sent or received outside the British Islands”)230, the

specification of a named subject or an address is not required.231 The scope of warrants for external

communications could be very broad.

224
ibid 138.
225
ibid 137.
226
ibid 136.
227
ibid 137.
228
Interception of Communications Act 1985 s 10(3).
229
ibid 2(4).
230
ibid 10(1).
231
ibid 3(2).

33 / 48
A warrant issued by the Secretary of State had an initial validity of two months.232 However, a

warrant might be renewed at any other time to extend its validity by one more month in the case of

serious crimes or by six more months in the case of national security or economic well-being of the

UK.233

The focus of ICA 1985 was on the content of telephone conversations. The ICA 1985 did not cover

the practice of “metering”234 although in Malone v the UK, the ECtHR said that the uncontrolled

release of metering data to the police was in breach of Article 8 of ECHR.235 According to the ECtHR,

the level of safeguard for metering data might not be the same as that for interception of

communications, however, some control would be required to comply with the ECHR.236 Metering

data had been known to be “as valuable as” the content of telephone conversations to the police.237

The ICA 1985 did not address the issue of metering data, except for the criminalisation of

unauthorised disclosure of such data by the workers of public telecommunications systems.238

Section 7 and ICA 1985 provided for the creation of a tribunal for people who “believe that

communications sent to or by him have been intercepted” to request an investigation.239 The

tribunal would not tell the applicant directly whether he or she was under surveillance.240 If there

existed a warrant related to the subject, the tribunal would investigate whether there were a

contravention of warrant requirements.241 The applicant would only be informed of either “no

contravention”242 or the existence of contravention with relevant orders made by the tribunal243.

The tribunal also had the power to quash a warrant, order the destruction of intercepted materials

232
ibid 4(6)(a).
233
ibid 4(6).
234
Lloyd (n 187) 92.
235
Malone v the United Kingdom (n 146) para 89.
236
Lloyd (n 187) 92.
237
ibid.
238
Interception of Communications Act 1985 sch 2, s 45(1)(b).
239
ibid 7(2).
240
Cameron (n 220) 145.
241
Interception of Communications Act 1985 s 7(3).
242
ibid 7(7).
243
ibid 7(6).

34 / 48
and order a payment of compensation to the applicant.244 For the supervision of the overall

implementation of ICA 1985, Section 8 of ICA 1985 required the appointment of a person who held

“high judicial office” as a commissioner to review the exercise of power to issue warrants by the

Secretary of State and to give assistance to the tribunal.

The creation of the tribunal is in part a response to the requirement of “effective remedy”

developed in the ECtHR case of Klass v Germany.245 The tribunal is formed of “five members [of]

barrister, advocate or solicitor of not less than ten years' standing”.246 However, the effectiveness of

the tribunal was in doubt because the materials that the tribunal had access to could not be

different from those presented to the Secretary of State during the application for the warrant.247

The tribunal might hardly come to a conclusion different that of the Secretary of State.248

Regulation Investigatory Powers Act 2000 – Obscure Power for Mass Surveillance

The UK government enacted a comprehensive surveillance regime - Regulation Investigatory Powers

Act 2000 (RIPA 2000) - to replace ICA 1985.249 ICA 1985 was considered “outdated” for its limited

scope (not covering some means of surveillance like long-range microphones, infra-red cameras and

bugging devices250) and its failure to catch up with new communication technologies251.

RIPA 2000 preserved more or less the same set of procedures and requirements for the issue of

interception warrant, albeit with some subtle changes, of ICA 1985. Under RIPA 2000, the

grounds252 on which an interception warrant may be granted are identical to those specified in

244
Cameron (n 220) s 7(5).
245
ibid 147.
246
Interception of Communications Act 1985 sch 1, s 1(1).
247
Cameron (n 220) 146.
248
ibid.
249
Alan S Reid and Nicholas Ryder, ‘For Whose Eyes Only? A Critique of the United Kingdom’s Regulation of
Investigatory Powers Act 2000’ (2001) 10 Information & Communications Technology L 179, 179.
250
Lloyd (n 187) 93.
251
Reid and Ryder (n 249) 182.
252
Regulation of Investigatory Powers Act 2000 s 5(3).

35 / 48
Section 2 of ICA 1985, except for a new provision253 on international mutual assistance in preventing

or detecting serious crimes. An important new element to RIPA 2000 is the introduction of a

proportionality requirement consistent with ECtHR jurisprudence.254 The Secretary of State had to

assess not only whether an interception would be necessary on the grounds specified but also

whether the interception would be proportionate to the objective of the warrant.255 Section 5(4) of

RIPA 2000 further provided that the Secretary of State had to consider also whether or not there

were other reasonable ways to obtain the data being sought.

RIPA 2000 defined a category of data called “communications data” which consists of what was

known as “metering data” in Malone v UK. “Communications data” are not the content of

communications but “any traffic data comprised in or attached to a communication”256 such as the

origin, the destination, the time etc. Authorisation for acquisition of communications data was

much less restrictive than interception of communications. The Secretary of State had the power to

designate officers of the police authorities, customs and intelligence services to authorise other

people within the same public authority to request communications data from communication

service providers.257 Authorisations may be granted on a wider range of grounds, compared with

interception of communications, and even “for any purpose” specified by the Secretary of State in

an order.258 Some of the grounds expressly provided in section 22(2) of RIPA 2000 were public

safety, public health, collection of tax and prevention of death or injury in an emergency.

RIPA 2000 inherited the formats of interception warrants from ICA 1985. For the interception of

internal communications, the name of the person whose communications are to be intercepted or a

set of premises must be specified in a warrant on the basis of section 8(1) of RIPA 2000. The

warrants issued under section 8(1) were also known as “targeted warrant” or “section 8(1) warrant”

253
ibid 5(3)(d).
254
Cameron (n 220) 192.
255
Reid and Ryder (n 249) s 5(2)(b).
256
Regulation of Investigatory Powers Act 2000 s 21(4).
257
ibid 25.
258
ibid 22(2)(h).

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in later legal challenges.259 To the contrary, for the interception of external communications260 or

the acquisition of communications data, there is no requirement to specify a name or an address in a

warrant261 on the basis of section 8(4) of RIPA 2000. The warrants issued under section 8(4) were

also known as “untargeted warrant” or “section 8(1) warrant” in later legal challenges.262

A tribunal known as Investigatory Powers Tribunal (IPT) independent of the executive was created by

section 65 of RIPA 2000. The IPT succeeded the tribunals created by Schedule 7 of ICA 1985, Section

9 of the Intelligence Services Act 1994 and Security Service Act 1989.263 The IPT hears not only

complaints about suspected unlawful interception of communications264 but also complaints against

“any of the intelligence services”265. The IPT is also the “only appropriate tribunal” in the UK to

handle claims of violation of the ECHR in interception of communications and the conducts of the

intelligence services.266

Section 14 of RIPA 2000 imposed an obligation on providers of telecommunication services and

postal services to have “practical capability” to assist in interception of communications. The

Secretary of State has the power to issue a technical notice to service providers. A service provider

may refer the notice to the Technical Advisory Board, in which the industry is represented, to review

the technical requirements and the costs. The Secretary of State will make the final say on the

version of the notice or its withdrawal. The notice is enforceable in civil proceedings. The Secretary

of State would financial compensate the service providers for the work needed to comply with the

technical notices.

259
Big Brother Watch and Others v the United Kingdom 58170/13 [2018] 9 WLUK 157 [61].
260
Regulation of Investigatory Powers Act 2000 s 8(5).
261
ibid 5(6)(b).
262
Big Brother Watch and Others v the United Kingdom 58170/13 (n 259) para 61.
263
Regulation of Investigatory Powers Act 2000 sch 5.
264
ibid 65(5)(b).
265
ibid 65(3)(a).
266
ibid 65(2)(a).

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The Liberty and Big Brother Watch Cases – Mass Surveillance Challenged

In the advent of the Internet, the boundary between “internal” and “external” communications is

blurred. It is not unusual for communications between any two persons in the UK to be routed

through the network infrastructure of other countries. The Europe Union (EU) law and EU-US

agreements on data protection have facilitated the flow of personal data between EU countries and

the US.267 UK users’ communications are not necessarily stored in the UK.

“Communications data” – also known as “metadata” 268 – now covers many more attributes of one’s

life than it was the time of the “metering data” about telephone calls in Malone v the UK. Gaze into

the communications data of an individual can reveal a lot about one’s “personality, habits and

condition”.269 Some scholars even argued that the “artificial distinction” between communications

and communication data should be removed.270

Snowden revelations exposed the secret surveillance capabilities of the UK and US governments to

the public. The UK government was believed to have issued and continuously renewed untargeted

interception warrants, on the ground of national security, to authorise bulk interception of

communications and communications data of the Internet traffic passing through the UK.271 The UK

government was reported to have acquired communications of individuals in the UK through the

surveillance capabilities (PRISM) of the US.272

In light of the surveillance capabilities revealed by Snowden, several UK civil society organisations

complained RIPA 2000 to the IPT for a breach of Article 8 of ECHR.273 The two types of warrants

267
Commission, ‘Data Protection Rules as a Trust-Enabler in the EU and beyond – Taking Stock’ (2019)
COM(2019) 374 final.
268
Big Brother Watch, ‘Briefing Note: Why Communications Data (Metadata) Matter’ (2014)
<https://www.bigbrotherwatch.org.uk/wp-content/uploads/2014/07/Communications-Data-Briefing.pdf>.
269
ibid.
270
Daragh Murray and Pete Fussey, ‘Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law
Approach to Bulk Monitoring of Communications Data’ (2019) 52 Israel L Rev 31, 54.
271
Sebastian Schweda, ‘UK Surveillance Under Judicial Scrutiny: GCHQ Intelligence Sharing with NSA
Contravened Human Rights, But Is Now Legal’ (2015) 1 Eur Data Protection L Rev 61, 66.
272
Hopkins (n 108).
273
Liberty v GCHQ [2015] 3 All ER 142 [2].

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under RIPA 2000 – “targeted warrant” under section 8(1) and “untargeted warrant” under section

8(4) – were the focus.274 The UK government was supposed to have to apply for a targeted warrant,

pursuant to section 8(1) of RIPA 2000, to obtain the communications between the people living in

the British Islands. The UK might use untargeted warrant, pursuant to section 8(4) of RIPA 2000, to

acquire communications data and the communications to which a party is not in the British Islands.

The power of untargeted warrants can be worrying taking into account of the surveillance

capabilities of the UK and the US governments. Untargeted warrants are more flexible and can be

used to intercept a “substantial volume of communications”.275 Also, the materials provided to the

UK by the US were considered “external communications”. A less restrictive untargeted warrant

would suffice for the UK government to acquire and carry out any search.276 Concerns were raised

whether the UK government had circumvented the more restrictive requirements of targeted

warrant by taking advantage of the intelligence-sharing agreement with the US.277

The UK government insisted that it was “necessary” and “proportionate” for intelligence services to

acquire unanalysed data, which comprised of communications and communications data, from a

foreign government.278

The IPT held that section 8(4) of RIPA 2000 – the legal basis of untargeted warrant – had not

contravened Article 8 of ECHR.279 The IPT, in its judgement, revealed that the UK Secretary of State

had approved untargeted interception warrants to request “the assistance of [a] foreign

government” to obtain the communications where it was not “technically feasible” to obtain the

communications using a targeted warrant in the UK.280 The emails of one of the UK-based NGO

claimants, Amnesty International, were obtained by the UK government using an untargeted

274
ibid 65.
275
ibid 70.
276
ibid 145.
277
ibid 5.
278
ibid 47.
279
ibid 161.
280
ibid 47.

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warrant.281 The IPT considered the interception lawful. It was disclosed to Amnesty International

only because the UK government failed to follow the procedure to destruct the data at the end of

the retention period.282 The IPT concluded that section 8(1) and 8(4) of RIPA 2000 had “sufficient

clarity to give the individual adequate protection against interference.”

The claimants brought the case to the ECtHR. The Section I Chamber of ECtHR consolidated similar

applications in one case known as Big Brother Watch v the UK. Concerning the bulk interception of

“external” communications on the basis of section 8(4) of RIPA 2000, the UK government recognised

that the scope of “external communications” is wide to an extent which emails, social media posts

and any file stored on overseas servers fall into its scope.283 The applicants claimed that anyone

could be implicated with the untargeted warrant because of the blurred boundary of internal and

external communications.284 The UK government defended that if a person is known to be in the

British Islands, his or her name, email address and other personal identifiers might not be used as a

criterion to search the materials acquired using an untargeted warrant.285 The UK government

insisted that bulk interception of communications enabled by section 8(4) of RIPA 2000 had an

important role in the protection of the national security of the UK from terrorism.286

The ECtHR examined the format of untargeted warrants. A warrant on the basis of section 8(4) of

RIPA 2000 should contain the following information.287

“A description of communications to be intercepted;

The warrant reference number; and

Details of the persons who may […] modify the […] warrant in an urgent case […]”

281
Liberty v Secretary of State for Foreign and Commonwealth Affairs [2015] 3 All ER 212 [14].
282
ibid.
283
Big Brother Watch and Others v the United Kingdom 58170/13 (n 259) 71.
284
ibid 275.
285
ibid 86.
286
ibid 282.
287
Home Office, ‘Interception of Communications Code of Practice’ (2016) para 6.18.

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The ECtHR observed that the search criteria were not required to be specified in a warrant and could

be chosen without oversight.288 Compared with Weber v Germany, the G-10 law required prior

approval of the list of “catchwords” devised for the purpose of strategic monitoring.289 Bulk

interception of communications per se is not prohibited by the ECHR as in Weber v Germany.290

However, as in the cases of Roman Zakharov v Russian and Malone v the UK, in the context of secret

surveillance, the law must provide foreseeability and sufficient clarity on the discretion conferred on

the authorities.291 The ECtHR considered that if bulk interception is not “significantly curtailed” by

the conditions set out in a warrant, the stage of selection of data for examination should

“necessarily be more robust”.292 ECtHR concluded that section 8(4) of RIPA 2000 was not

“sufficiently robust to provide adequate guarantees against abuse” because “the selectors” were

neither predefined in the warrant nor subject to any independent oversight.293

The ECtHR reiterated that the breadth of discretion that the state can exercise to carry out secret

surveillance should be discernible from legislation.294 Section 8(4) of RIPA did not meet this test as in

the case of Roman Zakharov v Russian. The ECtHR ruled that the interference caused by the section

8(4) of RIPA did not meet the “necessity” requirement as in “necessary in a democratic society” and

“foreseeability” as in “in accordance with the law” under Article 8(2) of ECHR.

On the issue of communications data, the ECtHR agreed that communications data in bulk would

reveal “an intimate picture” of an individual by showing his or her social connections, locations and

Internet browsing history.295 The ECtHR also concluded that RIPA 2000 had no “real safeguard” in

the examination of communications data.

288
Big Brother Watch and Others v the United Kingdom 58170/13 (n 259) para 227.
289
Weber and Saravia v Germany (n 189) para 32.
290
Big Brother Watch and Others v the United Kingdom 58170/13 (n 259) para 314.
291
ibid 306.
292
ibid 346.
293
ibid 347.
294
ibid 315.
295
ibid 356.

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Concerning the alleged circumvention of domestic law on interception of communications by

obtaining data from a foreign county, the ECtHR recognised that the act of interception per se could

not be attributed to the UK under international law.296 However, the ECtHR considered that the

“Weber safeguards” developed in Weber v Germany should also apply to the acquisition of

interception materials from a foreign government in the same way as they were intercepted using

UK’s “own techniques”.297 Otherwise, state parties to the ECHR could circumvent their obligations

under ECHR by obtaining intelligence materials from a non-contracting state.298 The ECtHR was

satisfied that the UK had put in place measures to subject materials obtained through the US to the

“internal rules” as the communications were intercepted by the UK.299 The ECtHR concluded that

the UK practice of using materials from a foreign country did not violated Article 8 of ECHR.300 At the

time of writing, the Big Brother Watch case was referred to the Grand Chamber of ECtHR.301 The

judgement made by Section I Chamber is not final.

Regulation Investigatory Powers Act 2016 (RIPA 2016) – “Legal footing” to Mass

Surveillance

While the Section I Chamber of ECtHR was still considering the Big Brother Watch case, the UK

government enacted RIPA 2016. Section 136 of RIPA 2016 created the type of “bulk interception

warrants” for the interception of “overseas-related communications”. Scholars criticised that the

“bulk” warrants served the purpose of giving “legal footing” to the mass surveillance measures that

have been practised by the UK for a while.302

296
ibid 420.
297
ibid 423.
298
ibid 424.
299
ibid 432.
300
ibid 447.
301
Council of Europe, ‘Grand Chamber Hearing on Complaints about Surveillance Systems in the Case of Big
Brother Watch and Others v. the United Kingdom’ (10 July 2019).
302
Burkhard Schafer, ‘Surveillance for the Masses: The Political and Legal Landscape of the UK Investigatory
Powers Bill’ (2016) 40 Datenschutz und Datensicherheit-DuD 592, 596.

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The bulk interception warrants under section 136 of RIPA 2016, in essence, are not very different

from the untargeted warrants under section 8(4) of RIPA 2000. A notable change is that bulk

interception warrants now require “operational purposes” to be specified.303 An “operational

purpose” needs to be “specified in a greater level of detail” than “in the interests of national

security”, “preventing or detecting serious crime” and “the interests of the economic well-being of

the [UK] so far […] relevant to […] national security”.304

The Secretary of State maintains a list of “operational purposes”305 which is shared to the

Intelligence and Security Committee of the Parliament306 and is reviewed by the Prime Minister307

annually. There is no publicly available information on the list of “operational purposes” yet.

However, it is reasonable to contemplate that a “purpose” one “level deeper” than “national

security” can still be written in a very broad and vague manner. Based on the condition that the list

is only reviewed once a year, each operational purpose should be relatively stable and broad.

Agents of the state may still have a considerably large degree of freedom to select what to intercept

and analyse for an “operational purpose”. The control of search selectors falls into the responsibility

of “a senior official acting on behalf of the Secretary of the State”.308

RIPA 2016 does provide some new safeguards. For example, the activity of trade unions is expressly

excluded from the grounds for getting communications data.309 Confidential journalistic materials

intercepted using a bulk interception warrant, if identified, must be destructed.310 Targeted

interception of the communications of members of the Parliament requires the approval of the

Prime Minister.311

303
Regulation of Investigatory Powers Act 2016 s 142.
304
ibid 138.
305
ibid 142(6).
306
ibid 142(8).
307
ibid 142(10).
308
ibid 153(2).
309
ibid 61(8).
310
ibid 145.
311
ibid 111(3).

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Discussion and Conclusion

This dissertation covered the development of the right of privacy in the UK, select cases on state

surveillance decided by the ECtHR and the development of the UK law regulating states’ interception

of communications.

Under the ECHR, in the name of security, states have some power to interfere with the private lives

of the people. However, states do not have unfettered power to carry out secret surveillance due to

its inherent dangers. The ECtHR has developed a set of minimum safeguards to check whether state

surveillance falls within the exceptional cases in Article 8(2) of ECHR in its jurisprudence.

Surveillance law must provide clarity, foreseeability and adequate safeguards against abuse. The

minimum standard is evolving as the ECtHR handles complaints about the ever-changing state

practices to carry out surveillance.

The UK’s surveillance capabilities and practices are always a step ahead of the law. The UK

authorities adopt new practices that ostensibly fit into the framework of existing law but potentially

create a higher level of interference with people’s lives which may be hard to foresee in the law.

The ECtHR’s rulings influenced the UK government to introduce safeguards to and improve the

foreseeability of surveillance law. However, an increase in intrusion capabilities often accompanies

law revisions. A new law at its best served to consolidate, codify and clarify the existing surveillance

practices. There seemed to be a pattern that the UK government would “fix” some concerns raised

by the ECtHR, but, at the same time, legally strengthen, or even expand, the power to carry out

surveillance. The reluctance to introduce a general right to privacy in the UK may help explain why

ensuing compatibility with Article 8 of ECHR is not a priority in the UK legislation on state

surveillance. It is reasonable to speculate that there will be “no end” to the litigations challenging

the legality of the UK surveillance regime under the ECHR, as long as the HRA 1998 and the ECHR

remain in force in the UK.

44 / 48
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