Edward Snowden allegations do not disclose breach of human rights

05/12/14

The Investigatory Powers Tribunal today ruled on a complaint brought by Liberty, Privacy International and Amnesty International arising out of the allegations made by Edward Snowden. The complaint related to three interception and data collection  programmes whose existence was alleged by Snowden: the “Prism” and "Upstream"programmes (which have been publicly avowed in the US and to which UK intelligence agencies allegedly have access) and the "Tempora” programme (by which UK intelligence agencies allegedly collect communications content and data in bulk). The complaint was that the legal regime to which these programmes were subject contained insufficient safeguards to satisfy the requirements of the ECHR and in particular Article 8.

The Tribunal (Burton J, Carr J, Robert Seabrook QC, Christopher Gardner QC and HH Geoffrey Rivlin QC) held a 5-day open hearing on assumed facts, followed by closed hearings attended only by counsel to the Tribunal and counsel for the respondents and a further open hearing. As a result of the closed hearings, additional disclosures were made about the hitherto unpublished safeguards applicable to the obtaining, retention and use of intercepted material.

The Tribunal held as a matter of law that, in considering whether the regime was “in accordance with the law” for the purposes of Article 8, it was permissible to consider arrangements applicable to the intelligence services which were not made public (referred to as arrangements “below the water line”). The Tribunal concluded that, the arrangements below the water line would be sufficient to comply with Articles 8, 10 and 14, but only once the additional public disclosures made following the closed hearings were taken into account. It gave directions for further consideration (in open and in closed) as to the consequences of that ruling for interceptions made prior to the public disclosures and for closed consideration of the question whether there had been any breach of Convention rights in relation to the complainants.

The judgment is here.

The BBC report can be found here.