The UK Investigatory Powers Tribunal (IPT) has found secret surveillance to be incompatible with European Union (EU) law.
Privacy International (PI) challenged the UK bulk communications regime, specifically section 94 of the Telecommunications Act, which has since been repealed by the Investigatory Powers Act, for being incompatible with EU human rights standards. This judgement renders decades worth of secret data captured by the UK Security and Intelligence Agencies (SIAs), namely GCHQ, MI5 and MI6, to be unlawful. Furthermore, during the proceedings it was found that all three UK SIAs were illegally holding PI’s data.
This ruling came after the 2020 European Court of Justice ruling. In that case, the court found that mass data retention and collection practices undertaken by the UK government for national security purposes must be subjected to the same privacy safeguards as outlined by EU law.
This IPT decision is considered a milestone in bulk communications data litigation. However, the PI has asked the IPT to reopen the case after new information has been found. These new facts suggest that MI5 has not been compliant with statutory and non-statutory safeguards concerning bulk data handling since at least 2014. In addition, the PI is seeking disclosure of the dissenting IPT judicial opinions given in “closed”, which have not been available for review.
The case’s summary of legal proceedings until July 2019 is available here. PI will continue to work towards protecting the right to privacy through such litigation.