It has been reported in the Guardian (here; http://www.theguardian.com/world/2013/nov/03/uk-reaction-nsa-leaks-human-rights) that seventy leading Human Rights groups have warned David Cameron that his response to the NSA scandal is far from adequate and threatens freedom of expression. They say that “We have joined together as an international coalition because we believe that the United Kingdom government’s response to the revelations of mass surveillance of digital communications is eroding fundamental human rights in the country,” the letter states. “. But what is really happening, does the activities of the NSA, in coordination with GCHQ (for the purposes of this blog, I refer mostly to GCHQ as an organisation in the UK’s jurisdiction) erode freedoms or protect a nation from tragedies like 9/11?
Article 10 of the ECHR does state at s10(1) that ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises’.
However, s10(2) states that ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary‘.
The most relevant phrases here are ‘in the interests of national security‘ because this is what the government and intelligence agencies argue, and ‘right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority’.
The NSA and GCHQ have been conducting what I believe is a grossly disproportionate surveillance programme which, even now, surprises and shocks me. I am not shocked that this has been happening. Spying is normal and necessary in every country and every society to some degree to ensure the survival of the people and protection from extremists that would kill thousands without second thought. However, I am shocked that intelligence agencies think that monitoring millions of people is an effective use of their time, if anything it distracts from the real mission and it increases the possibility of missing actionable intelligence that could stop a major plot.
But does what the NSA and GCHQ doing meet the criteria of s10(2), in particular, is the activity necessary in the interests in national security? They would argue yes for the obvious reasons, I would argue no, it has gone way beyond what the programmes and mandate was created for, I don’t believe it was ever the intention of the US or UK government to authorise the surveillance of millions of people but to authorise the surveillance of legitimate targets and legitimate threats to the country. Whether that be surveillance of terror strongholds in Afghanistan or specific terror cells operating within the UK.
In the most relatable case of The Observer and The Guardian v United Kingdom (Spycatcher), the British Government lost its long-running battle to stop the publication of the controversial book Spycatcher which included sensitive operational information, written by Peter Wright, former MI5 officer and Assistant Director, and co-author Paul Greengrass. In November 1991, the European Court of Human Rights ruled that the British government had breached the European Convention of Human Rights in gagging its own newspapers.
However, one key and crucial difference between what is happening now and what happened then was that Law Lords ruled the media can publish extracts from former MI5 officer Peter Wright’s memoirs, only because any damage to national security has already been done by its publication abroad. Before the leaks by Edward Snowden, nobody but those who were authorised to, knew about PRISM or GCHQ activity. Sure, it may have been speculated and widely accepted that they were spying on people but there was never an abundance of information that the leaks provided.
As far as I can tell from the leaks I have seen thus far, although they are damaging to relationships, there is nothing that would put national security at risk. I am sure that The Guardian and others publishing the content, including Snowden, would think twice about putting people at risk or revealing targets. And, arguably, the damage has already been done as it was in the Spycatcher, so there is little prospect of success using article 10(2).
Whatever happens now is up to the US and UK government but there is no doubt in my mind that the scale of surveillance needs to be scaled back, if not for the sake of preventing real plots then for the sake of their reputations.
The coalition of HR groups say “We believe these actions clearly violate the right to freedom of expression, which is protected under British, European and international law … We also believe that this use of national security will have dangerous consequences for the right to freedom of expression and media freedom in the UK and beyond, creating a hostile and intimidating environment and discouraging those who could reveal uncomfortable truths and hold those in power to account.