After UK Mass Digital Surveillance Regime Ruled Unlawful, What Next?

Britain will now need to amend its law giving state security agents sweeping mass surveillance powers. What does this mean for citizens?

Judges on the UK's Court of Appeal on 30 January ruled that significant parts of the government’s mass digital surveillance regime, the Investigatory Powers Act, are unlawful. Labour Party deputy leader Tom Watson, represented by Liberties member Liberty, a leading UK human rights group, brought the case to court.

In his reaction to the ruling, Watson said, "The government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to crime, are protected by a system of independent approval for access to communications data. I’m proud to have played my part in safeguarding citizens’ fundamental rights."

Liberty said the ruling meant significant parts of the Investigatory Powers Act 2016 – known as the snoopers' charter – are effectively unlawful and must be urgently changed. “The government is breaking the law by collecting the nation's internet activity and phone records and letting public bodies grant themselves access to these personal details with no suspicion of serious crime and no independent sign-of,” the civil rights organisation said in a statement released after the verdict.

"Yet again, a UK court has ruled the government’s extreme mass surveillance regime unlawful. This judgment tells ministers in crystal-clear terms that they are breaching the public’s human rights," said Martha Spurrier, director of Liberty, in her reaction.

Impact on the Investigatory Powers Act

Since this legal challenge was launched in 2014, the Investigatory Powers Act has not only been re-legislated to include the powers found unlawful today, but gone much further.

The act dramatically expanded the state's powers to gather data on the entire population, while maintaining the lack of safeguards that resulted in this legal challenge. It also legalised other unprecedented mass surveillance powers – including mass hacking, spying on phone calls and emails on an industrial scale and collecting huge databases containing sensitive information on millions of people.

These indiscriminate powers are also unlawful and Liberty is challenging them in a separate case, having crowdfunded more than £50,000 (€56,000) in just a few days to support their challenge.

Court of Justice precedent

It is worth noting the impact that a 2016 Court of Justice of the European Union (CJEU) ruling had on this decision in the UK. CJEU judges ruled that the mass retention of data was illegal and that violating people’s privacy could only be justified by the objective of fighting serious crime, and access to data should be subject to prior review by a court or independent body.

Britain’s Court of Appeal agreed that accessing retained data without proper oversight, and in the absence of serious crime, was inconsistent with EU law.

In anticipation of the CJEU ruling, the UK Home Office in November 2017 announced a series of safeguards, including removing the power of self-authorisation for senior police officers and requiring approval for requests for confidential communications data to be granted by the new investigatory powers commissioner. But campaigners like Watson said these safeguards are half-baked and did not go far enough.

In his reaction to the ruling, Minister for Security Ben Wallace said: "Communications data is used in the vast majority of serious and organised crime prosecutions and has been used in every major security service counter-terrorism investigation over the last decade."

Wallace said the judgment related to legislation that was no longer in force and did not change the way in which law enforcement agencies could detect and disrupt crimes.

Amendments on the way

Concerning the future, Wallace added: "We had already announced that we would be amending the Investigatory Powers Act to address the two areas in which the Court of Appeal has found against the previous data retention regime. We welcome the fact that the court of appeal ruling does not undermine the regime and we will continue to defend these vital powers, which Parliament agreed were necessary in 2016, in ongoing litigation."

Britain has been at the forefront of a battle between privacy and security ever since former US National Security Agency contractor Edward Snowden leaked details of mass monitoring tactics used by US and British agents in 2013.