Human Rights and Mass Surveillance

The Human Rights Act[1] set our fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates all the rights which are contained in the ECHR[2] into UK law. This allows everyone to be treated fairly and equally and sets out our specific rights to life, liberty, privacy etc. This essay will be exploring the relationship between human rights and the state surveillance of citizens. In this modern internet age, increasing amounts of personal data is stored. This ranges from our interactions with smartphones and laptops to specific location tracking of individuals through CCTV and GPS. This poses important questions about who is entitled to accessing our data and to what extent is our private information actually private. Throughout this essay, I will be assessing the degree to which our rights are at risk with reference to the close observation of civilians.

Mass surveillance is the practise of supervising the population’s actions, locations and communications. It can be carried out by the government or other corporations on their own initiative. It is mainly a counter terrorism measure to catch criminals in the unlawful act and save thousands of lives. The UK is facing its most severe terror threat to date which is evolving rapidly. Last year, the MI5 managed to stop far more terror plots than those which have caused mass casualties in the public.[3] It can be argued that state surveillance is in fact protecting our right to life by preserving order and peace within the society.

On the other hand, state surveillance can also be seen to hinder our fundamental right to privacy which is an important aspect of our dignity and identity. Under the Human Rights Act[4] it states that we have a right to life ‘without government interference’. It is clear how monitoring our every action can push these boundaries. Our sense of personal freedom is weakened when the intimate parts of our lives can be recorded and kept without restriction. State surveillance measures are only getting stronger which is severely putting our human rights at risk.

In 2013, Edward Snowden revealed that GCHQ was processing and intercepting billions of our communications every day and sharing all of our information with the US without adequate safeguards or supervision for 17 years.[5] This ranged from our internet histories to our phone call recordings and the content of our private messages. This can uncover everything about an individual including their political view, religious ideas, sexual interests and medical concerns. Snowden had hoped that by exposing the unlawful and undemocratic ways of mass surveillance, the resulting public outcry would stop it. In the UK, however, the government responded by not only legalising these powers, but by expanding them.

Theresa May announced the publication of a Draft Investigatory Bill[6] on 4^th November 2015. She set out her view on the need for new guidelines within surveillance and the powers that will be contained within the new legislation. She argued that ‘The bill will establish world-leading oversight to govern an investigatory powers regime which is more open and transparent than anywhere else in the world.’[7]

We can argue, however, that this bill has put our human rights at risk more than ever before. The bill can do many things such as:

• Allow communication and internet companies to preserve customer usage for a year, making them accessible to all public bodies
• Build new rules about who can intercept your personal communications
• Legalise armed forces, intelligence agencies and law enforcement to interfere with all electronic equipment, allowing them to download all content from your smartphone or computer. In addition to this they can switch on microphones and cameras as well as track our typing
• Allow authorities to use these powers in bulk to acquire large numbers of data from a large number of people. This includes everything from medical records to credit references and financial activities.

This is a clear breach of The Human Rights Act[8]. Article 8 recognises that all human beings enjoy a fundamental right to privacy which certainly extends to an individual’s private e-activities. A state agency that intrudes on an individual’s online communications will be acting unlawfully for the purposes of Article 8 unless the interference with privacy rights can be correctly justified. In Kennedy[9], the European Court of Human Rights underlined that secret surveillance must be ‘strictly necessary for safeguarding democratic institutions’ and that ‘there must be adequate and effective guarantees against abuse.’  This also breaches The Data Protection Act[10] which embodies a number of comprehensive rules relating to the circumstances in which personal data, counting not only written information but also photographs and voice recordings, may lawfully be processed.

The Bill[11] is primarily a counter-terrorism measure however authorities also hope to use it to catch criminals. For example, the retention of online internet history will help the police to recognise people who are uploading and viewing child pornography online. No one can deny that catching terrorists and child abusers is imperative, but the Bill jeopardises our privacy in unprecedented ways. The government has the power to monitor everyone as opposed to just monitoring those who are involved in criminal activties. For some people, their search histories can be seen to be just as private as their personal thoughts and can contain far more information than a diary entry ever could.

A questionable amendment was put forward by the House of Lords ensuring that MP’s would not be subject to the same provisions as ordinary citizens, protecting them against invasive surveillance powers. This puts a hierarchy on the system and does not allow us to all be treated as fairly as equals which raises another key issue in our rights. After being approved by the House of Lords on Wednesday 16 November 2016, the Bill received royal assent on 29 November 2016 and was enacted. This measure put our human rights at risk to a critically high degree.

In their manifesto, the Conservative party state that they have been trailing behind the modification and regulation of rules surrounding developing technology: ‘The opportunities and threats arising from the advance of digital technology pose significant practical and philosophical challenges. They accelerate the pace of change – ushering in new norms in the space of years rather than decades; challenging our laws and regulations to keep pace.’[12] Their rush to keep up to date with modern advancements has resulted in rules which could ultimately be seen as a form of oppression.

There is also an indication in the manifesto that technology companies will be obligated to give the government access to any encrypted data or communications. This would mean creating a backdoor to personal data, which will allow hackers a way in and put us at a higher risk of cyber-attacks. By undermining the secure nature of encrypted messages, such as well-known services like WhatsApp, we are increasing the challenge of keeping our data safe. Government services and the public sector have always been particular targets for hackers, terrorist organisations and cyber criminals so the government should think carefully before trying to justify this move.[13] This shows how displaying our privacy is not only putting our human rights at risk, but it is opening up a door to dangerous criminal activity and compromising our individual security.

State surveillance, however, can be required when it comes to preventing serious crimes. It is no doubt that CCTV has helped to stop criminals and convict the correct people of their crimes. Cases involving the Brixton nail bomber Copeland[14] and the abduction and murder of James Bulger[15] were solved through the use of CCTV surveillance. The cameras have provided valuable forensic evidence within investigations, allowing us to correctly identify the criminals. Not only do these cameras detect crimes but they can also act as a deterrent to committing felonies. By seeing the threat of surveillance, this can produce a self-discipline in which the individual polices their own behaviour and avoids criminal activities. This is an essential component for protecting the system from terrorism especially in bus and underground stations where we travel.

The Boston Marathon bombings were also solved through the use of state surveillance. After the crime, FBI agents searched through 120,000 photographs and 13,000 videos which were taken close to the crime scene.[16] After stumbling upon a video of two people who did not seem surprised when the first bomb went off, they released the video asking for the public’s assistance and were able to solve the investigation. The access the FBI had to our online communications is what had helped them identify the terrorists.[17] In Tele2 Sverige and Watson cases, the Court of Justice of the EU stated that ‘access by competent national authorities to retained data must be restricted solely to fighting serious crime, and subject to prior review by a court or an independent administrative authority’.[18] The FBI agents however had also searched for purchase records of the model of pressure cooker used to assemble the bombs. They began to interrogate members of the public which was not a good way of finding the correct criminals. Millions of people can purchase these devises without any means to create a bomb.

To conclude, it is clear that measures such as the IPA have put our human rights at severe risk, supressing our sense of liberty and privacy. Our rights have continued to be undermined by the government through their disturbingly invasive powers. In the case of crime prevention and law enforcement however, we can see how CCTV has protected lives. Following terrorists and cyber criminals online is certainly very important but monitoring the data of millions of people has proven to be an inefficient and a morally bankrupt way of fighting crime. The extent to which our individual human rights are affected with regards to these security measures must be revised.

Bibliography:

Table of Cases:

• Kennedy v United Kingdom (2010)
• R v Copeland (2011) EWCA Crim 1711
• T v United Kingdom (1999) 7 BHRC 659
• Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (2017) Q.B. 771

Table of Legislation:

• European Convention of Human Rights 1950
• Investigatory Powers Act 2016
• The Data Protection Act 1998
• The Human Rights Act 1998

Secondary Sources:

• Benson V and Turk U, ‘Privacy, security and politics: Current Issues and Future Prospects’ Comms. L. 2017, 22(4), 124-131
• Dodd V, ‘UK facing most severe terror threat ever, warns MI5 chief’, (The Guardian, 17 October 2017) https://www.theguardian.com/uk-news/2017/oct/17/uk-most-severe-terror-threat-ever-mi5-islamist accessed 5th January 2018
• Granick J.S, (Wired 3^rd February 2017) ‘Mass Spying isn’t Just Intrusive – its Ineffective’ https://www.wired.com/2017/03/mass-spying-isnt-just-intrusive-ineffective/ accessed 7^th January 2018
• Randol B.M, ‘An exploratory analysis of terrorism prevention and response preparedness efforts in municipal police departments in the United States: which agencies participate in terrorism prevention and why?’ (2013) Pol. J. 158
• Forward Together, Our Plan for a Stronger Britain and a Prosperous Future’, the Conservative and Union Party Manifesto 2017
• ‘Home secretary introduces draft Investigatory Powers Bill’, (GOV, 4 November 2015)  https://www.gov.uk/government/news/home-secretary-introduces-draft-investigatory-powers-bill accessed 6th January 2018
• ‘State Surveillance’, https://www.liberty-human-rights.org.uk/human-rights/privacy/state-surveillance accessed 6th January 2018

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[1] The Human Rights Act 1998

[2] European Convention of Human Rights 1950

[3] Vikram Dodd, ‘UK facing most severe terror threat ever, warns MI5 chief’, (The Guardian, 17 October 2017) https://www.theguardian.com/uk-news/2017/oct/17/uk-most-severe-terror-threat-ever-mi5-islamist accessed 5th January 2018

[4] HRA (n 1)

[5] ‘State Surveillance’, https://www.liberty-human-rights.org.uk/human-rights/privacy/state-surveillance accessed 6th January 2018

[6] Investigatory Powers Act 2016

[7] ‘Home secretary introduces draft Investigatory Powers Bill’, (GOV, 4 November 2015)  https://www.gov.uk/government/news/home-secretary-introduces-draft-investigatory-powers-bill accessed 6th January 2018

[8] HRA (n 1)

[9] Kennedy v United Kingdom (2010)

[10] The Data Protection Act 1998

[11] IPA (n 3)

[12] ‘Forward Together, Our Plan for a Stronger Britain and a Prosperous Future’, the Conservative and Union Party Manifesto 2017

[13] Vladlena Benson and Umut Turk, ‘Privacy, security and politics: Current Issues and Future Prospects’ Comms. L. 2017, 22(4), 124-131

[14] R v Copeland (2011) EWCA Crim 1711

[15] T v United Kingdom (1999) 7 BHRC 659

[16] Jennifer Stisa Granick (Wired 3^rd February 2017) ‘Mass Spying isn’t Just Intrusive – its Ineffective’ https://www.wired.com/2017/03/mass-spying-isnt-just-intrusive-ineffective/ accessed 7^th January 2018

[17] Blake M. Randol, ‘An exploratory analysis of terrorism prevention and response preparedness efforts in municipal police departments in the United States: which agencies participate in terrorism prevention and why?’ (2013) Pol. J. 158

[18] Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (2017) Q.B. 771