The European Court of Justice may be asked to decide on whether mass surveillance by the UK’s intelligence agencies is legal, following a legal challenge mounted by activist group Privacy International.
The court ruled in December that the “general and indiscriminate retention” of electronic communications by governments is illegal, in response to a case brought by Labour MP Tom Watson and Conservative MP David Davis, who is now Brexit secretary.
The European judgement, which examined the 2014 Data Retention and Investigatory Powers Act, found only the “targeted retention of that data solely for the purpose of fighting serious crime” was permissible.
That decision hasn’t been implemented in the UK, which has sought to legitimise the far-reaching surveillance practices of GCHQ, MI5 and MI6 in the Investigatory Powers Act that became law last year, according to the new challenge.
On Monday the Investigatory Powers Tribunal (IPT) said it was considering referring the issue to the European Court of Justice in Luxembourg.
IPT vice president Mr. Justice Mitting told the hearing the case “raises a fundamental political question as to the competing powers of the nation state and the EU”, according to The Guardian.
Privacy International told the court the untargeted surveillance justified by the so-called “Snooper’s Charter”, which has continued for more than a decade, is not subject to sufficient safeguards.
Data collected under the regime, which includes location data and call history for all UK mobile phones, is shared with private companies, university researchers and other countries’ governments with minimal restrictions on its use, according to the NGO’s case.
Limits are necessary even in the face of serious threats such as the recent London and Manchester attacks, the group argued.
“Notwithstanding such terrible threats to human life, the constitutional right to personal privacy sets limits on state surveillance powers,” Thomas de la Mare QC, for Privacy International, told the tribunal.
Regardless of its EU membership status, the UK may not be able to receive intelligence from other European countries unless its legal regime is aligned with theirs, the group argued.
The government’s case acknowledges that the EU court may be asked to clarify its judgement.
James Eadie QC, for the government, said the bulk collection of communications data is necessary due to the rise of encryption and in order to reduce the necessity of more intrusive techniques, such as the direct interception of transmissions.
The case begins following a renewed promise by prime minister Theresa May to force Internet companies to water down the encryption used in online and mobile communications.
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