Human rights pressure group Liberty is taking the British government to court this week in its ongoing battle to have the most invasive parts of the so-called Snoopers' Charter struck down.
In a judicial review at London's High Court this week, Liberty will be trying to convince Lord Justices Singh and Holgate that significant parts of the Investigatory Powers Act 2016 (IPAct) are incompatible with UK human rights laws.
"If we succeed," barrister Martin Chamberlain QC, for Liberty, told an airless Court 27 in the Royal Courts of Justice this morning, "we will be inviting the court to make declarations that parts of the Act are incompatible in certain respects with convention rights."
The pressure group hopes that this will force the government and Parliament to amend the IPAct and reduce the amount of warrantless state surveillance.
The convention Chamberlain referred to is the European Convention on Human Rights, which is a part of UK law through the Human Rights Act. Indeed, Lord Justice Singh asked the barrister to clarify that "this part of the challenge is brought exclusively under the Human Rights Act".
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Liberty's challenge is against those parts of the IPAct which allow bulk interception, hacking and obtaining people's data from ISPs and mobile phone operators. Chamberlain told the court that unlike the old Regulation of Investigation Powers Act (RIPA) regime, the IPAct legalised more categories of data for slurping by loosening previously tough restrictions on what the public sector could help itself to.
Referring to the "British Islands safeguard", which used to stop state snoopers from trawling through the actual contents of messages sent within the UK, Chamberlain explained that the IPAct had changed the law so many more categories of data were no longer protected by it: "That means it can be selected for examination and examined without seeking a warrant or another form of prior independent authorisation. Even where the person is known to be in the British Islands [sic] and the search is being undertaken to identify their information."
He added that it included "web addresses in their entirety", as opposed to the previous situation where only domains (google.com, nhs.uk, and so on, rather than the full length URL from someone's browsing history) could be hoovered up without a warrant.
"Under RIPA a web address after the first slash had to be treated as content and was subject to the British Islands safeguard," said Liberty's barrister.
The Home Office's legal team will say later this week that the IPAct strikes "an appropriate balance between security and individual privacy... in accordance with the law", arguing that EU courts have "consistently recognised that public safety and the prevention or detection of crime will justify such interferences" with human rights under Articles 8 and 10 of the ECHR.
The case is scheduled to be heard over the whole of this week. ®
Last week domestic spy agency MI5 was found to have broken the law by the Investigatory Powers Commissioner, something revealed during preliminary hearings for this case.
Spies lied to external overseers in order to break the law and obtain data they had no legal right to get their hands on, with Ben Jaffey QC telling the court that "warrants were issued to MI5 on a basis that MI5 knew to be incorrect and the judicial commissioners were given false information." ®
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