Digital Rights, National Security, Privacy, Data Protection and Retention, Surveillance
FBI v. Fazaga
Closed Mixed Outcome
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The Fourth Section of the European Court of Human Rights held that the right to respect for private and family life of the Applicants were violated by the United Kingdom in connection with its surveillance practices. The case originated from the Applicants’ complaints filed with the Investigatory Powers Tribunal, challenging the bulk interception of communications by UK intelligence agencies. The Court addressed preliminary issues, including exhaustion of domestic remedies, jurisdiction, and victim status. It rejected the Government’s argument that the applicants failed to exhaust domestic remedies and asserted that the interference with the applicants’ rights fell within the UK’s territorial jurisdiction. The Court found the Applicants had victim status and ruled a violation of Article 8 of the European Convention on Human Rights due to flaws in the Section 8(4) regime of the Regulation of Investigatory Powers Act. However, the Court deemed complaints under Article 10 inadmissible.
Applicant No. 1, Joshua Wieder is an American citizen who works as an IT Professional and Independent Researcher on Commerical Data Centres. Applicant No. 2, Guarnieri, is an Italian citizen and is a Privacy and Security Researcher. He has published his research with Der Spiegel and The Intercept and also created an Open Source Malware Analysis System. [para. 2 and paras. 6-7]
Between 2014 and 2015, the Investigatory Powers Tribunal (‘Tribunal’) delivered three rulings which were initiated by ten Human Rights Organisations. The rulings dealt with the issues of the bulk interception of communications by the United Kingdom intelligence agencies according to Section 8(4) of the Regulation of Investigatory Powers Act, 2000 (‘RIP Act’) and the receipt by the United Kingdom intelligence agencies of material intercepted by their foreign counterparts. The Tribunal upheld the RIP Act and held no violation of Articles 8, 10, or 14 of the European Convention. [para. 8]
Following the rulings, there was an international campaign by Privacy International encouraging individuals to file complaints with the Tribunal. Applicant No. 1 and Applicant No. 2 filed such complaints with the Tribunal alleging violation of Article 8 and Article 10 of the European Convention. [para. 9-12]
The Tribunal received around 600 complaints, of which 294 were residents of the United Kingdom. The Tribunal heard 10 applications (including the present Applicants) for hearing. The Government made preliminary submissions to the Investigatory Powers Tribunal. It sought a principled basis to address the claims and argued that the complaints raised no new legal issues but were meant to determine whether UK intelligence agencies held information or had access to material from the United States’ National Security Agency (NSA). The Government contended that complaints from individuals residing abroad were outside the scope of the Convention and should be dismissed at a preliminary stage. They also argued that individuals not present in the UK had no jurisdiction to file complaints under the Convention regarding communication interception. [para. 13-18]
On May 16, 2016, the Tribunal delivered its ruling, in response to Privacy International’s claims challenging government surveillance practices. The Tribunal recognized the lawful basis of the NSA’s targeted interception under FISA and Executive Order 12333, emphasizing intelligence agencies’ need to share information with foreign governments. The tribunal approached the question of locus standi with an open mind, stating that judgments in previous Liberty proceedings were the starting point for investigating individual claims. It rejected the argument that complainants needed to present a High Court-level arguable case for locus, citing jurisprudence, including Roman Zakharov v. Russia. Regarding victim status, the Tribunal applied a test based on whether applicants could show potential risk due to their personal situation. It found that six represented complainants satisfied this test concerning the Section 8(4) regime, with some uncertainty regarding one U.S. citizen’s receipt of intelligence from the NSA. The Tribunal considered supplemental information provided by complainants but dismissed claims from four unrepresented complainants due to insufficient information. [para. 19-21]
On the matter of jurisdiction, the Tribunal disagreed with the government’s argument that a Contracting State owed no obligation under Article 8 of the Convention to persons situated outside its territory in electronic communications. It dismissed claims by Guarnieri and Wieder, citing lack of jurisdiction under the Human Rights Act 1998 (‘HRA’), and also dismissed claims of three unrepresented complainants residing in the United States. The Tribunal directed inquiries for the six represented applicants, excluding HRA claims of Guarnieri and Wieder, and any claim by Wieder related to NSA intelligence receipt. It communicated the judgment to all complainants, indicating that HRA claims of non-UK residents were dismissed for lack of jurisdiction. Finally, the tribunal notified that non-HRA claims of UK residents and non-UK residents would be dismissed as unsustainable under Section 68(4) of the RIP Act without further submissions within twenty-eight days. [para. 22-24]
Justice Gabriele Kucsko-Stadlmayer, Justice Tim Eicke, Justice Faris Vehabović, Justice Branko Lubarda, Justice Anja Seibert-Fohr, Justice Ana Maria Guerra Martins, and Justice Anne Louise Bormann delivered a unanimous decision. The primary question before the Court was to determine whether the Applicant’s right to freedom of expression and right to respect for his private and family life, his home and his correspondence had been violated by the United Kingdom.
Before addressing the primary issue, the Court framed four preliminary issues to adjudicate whether the Application is admissible or not. i.e., exhaustion of domestic remedies, jurisdiction, and victim status.
On the exhaustion of domestic remedies
The central issue revolved around whether, in 2016, the Applicants were obliged to pursue judicial review proceedings following the Investigatory Powers Tribunal decision, given the apparent exclusion under Section 67(8) of the RIP Act. [para. 63-67] The Applicants contended that at the time of the Investigatory Powers Tribunal decision in their case, there was no right of appeal, and Section 67(8) of the Regulation of Investigatory Powers Act (RIP Act) purported to exclude the jurisdiction of the High Court to hear a judicial review application of a Tribunal decision.
In the present case, the Government contended that the Applicants should have sought judicial review of the Tribunal decision in 2016, invoking Section 67(8) of the RIP Act. However, the Court noted that the legal landscape changed only in 2019 when the Supreme Court ruled that, under certain circumstances, decisions of the Tribunal were subject to judicial review. Before this judgment, the Court applied a flexible approach, emphasizing that the obligation to exhaust domestic remedies should not be unduly formalistic. The Court considered it was not “sufficiently certain” in theory and practice, before the 2019 Supreme Court decision, that applicants could pursue judicial review, dismissing the Government’s preliminary objection on this basis. The Court highlighted the precedent of Privacy International’s unsuccessful attempts at judicial review in 2016, underscoring that the applicants were not required to exhaust an extraordinary remedy that was not reasonably certain at the relevant time. [para. 68-74]
On the issue of jurisdiction
The Government argued that the interception of communications by a Contracting State did not fall within the jurisdictional competence of that State under Article 1 of the Convention when either the sender or recipient complaining of a breach of their Article 8 rights was outside the territory of the Contracting State. The Government further contended that the interception of communications did not constitute exercising authority and control over individuals, as intercepted communications continued to the recipient.
The Applicants contended that their communications and/or related communications data fell within the jurisdiction of the United Kingdom for Article 1 of the Convention. They argued that when a Contracting State intercepted, stored, processed, and interrogated communications within its own borders, the resulting interference with Convention rights was within that State’s jurisdiction, even if the victim was abroad during the interference. Furthermore, the Applicants argued that the activity fell within the scope of one of the recognized exceptions to territoriality. They contended that when a State carried out secret surveillance within its territory, it exercised authority and control over the victim whose communications were intercepted. They challenged the notion that “State agent authority and control” required physical control and power over individuals abroad. Lastly, the applicants raised concerns about the absurd consequences if they were considered outside the United Kingdom’s jurisdiction merely because they were not present within its territory at the moment of interception. They argued that such a scenario would allow Contracting States to conduct mass surveillance outside their territory without complying with Article 8 safeguards, creating an arbitrary distinction in cases where communications were intercepted while a person was temporarily outside the country but analyzed upon their return. [para. 83-84]
The Court, in assessing the question of jurisdiction in the context of a complaint regarding interference with electronic communications, relied on general principles established in H.F. and Others v. France, (2022). The concept of “jurisdiction” for Article 1 of the Convention was discussed, emphasizing that a state’s jurisdictional competence is primarily territorial. While the Court acknowledged that extraterritorial exercise of jurisdiction is not excluded, it requires justification and is subject to limitations defined by the sovereign territorial rights of other states. [para. 87]
Turning to the application of these principles to the present case, the Court noted the absence of precedent specifically addressing jurisdiction in complaints about interference with electronic communications. It highlighted that the applicants did not claim to be physically present in the United Kingdom or an area over which the United Kingdom exercised effective control. The applicants argued that the acts complained of, including interception, extraction, filtering, storage, analysis, and dissemination of communications, fell within the respondent Government’s territorial jurisdiction or that one of the exceptions to the principle of territoriality applied. [para. 88-89]
Referring to the Big Brother Watch v. United Kingdom, (2021), the Court identified the key stages in the bulk interception process, emphasizing that the principal interference with Article 8 rights occurred during the searching, examination, and use of intercepted communications. In the context of the Section 8(4) regime, each step constituting an interference with the privacy of electronic communications was carried out by the United Kingdom intelligence agencies within the territory of the United Kingdom. [para. 90-91]
The Government contended that any interference with the Applicants’ private lives occurred only where the applicants were located, i.e., outside the United Kingdom. The Court rejected this argument, drawing parallels with the case law related to possessions under Article 1 of Protocol No. 1. It emphasized that an interference with an individual’s possessions occurs where the possession is interfered with, not necessarily where the owner is located. The Court referred to previous cases, such as Anheuser-Busch Inc. v. Portugal, (2007) and Von Hannover v. Germany, (2004) to support the view that interference with private life can take place where the impact is felt, regardless of the individual’s location. The Court concluded that the interference with the Applicant’s Article 8 rights occurred within the United Kingdom, specifically during the interception, searching, examination, and use of communications. Therefore, it fell within the territorial jurisdiction of the United Kingdom, and there was no need to consider the applicability of exceptions to the territoriality principle. [para. 92-95]
On the issue of victim status
On the issue of victim status, the Court addressed the matter ex officio, recognizing its jurisdictional significance. The Court outlined the criteria for determining victim status in the context of legislation permitting secret surveillance measures. It emphasized that potential applicants must establish that they belong to a group potentially affected by the contested legislation and, due to their situation, are at risk of being subjected to such measures. The Court referred to the Roman Zakharov v. Russia, (2015), highlighting that the level of persuasion necessary to establish victim status should not be unreasonably high, especially in the context of bulk interception regimes where communications may be intercepted, stored, and searched even if neither the sender nor recipient is of interest to intelligence agencies. [para. 96-99]
In the present case, the Court noted that domestic law provided a remedy for individuals who believed their communications had been intercepted. Potential applicants could claim victim status only if they could substantiate that they belonged to a group at risk of being directly affected by the surveillance regime. Despite the nature of electronic communications, where the sender may not know which countries the communications passed through, the Court acknowledged the need for potential applicants to take steps to substantiate the risk to their communications. However, in this specific case, the Court found it unnecessary to delve into detailed considerations regarding victim status. It cited the Independent Press Standards Organisation’s acceptance, based on the Court’s case law, that the applicants had victim status in their Article 8 complaint concerning the Section 8(4) regime. As the government did not challenge this finding, the Court accepted that the applicants could claim to be victims of the alleged violation of Article 34 of the Convention. [para. 99-102]
In addressing the merits of the case, the Government conceded that there had been a breach of Article 8 of the Convention, specifically in line with the aspects in which the Section 8(4) regime was previously deemed by the Grand Chamber in Big Brother Watch and Others to violate the same Article. Given that the applicants did not assert any other violations of their Article 8 rights, the Court, relying on the findings articulated in Big Brother Watch and Others, concluded that there had indeed been a violation of Article 8. The identified reasons for the breach included the absence of independent authorization, failure to include selector categories in the warrant application, and neglect to subject selectors linked to an individual to prior internal authorization. [para. 103-104]
On Article 10 claims
On the issue of the Applicant’s complaints under Article 10 of the Convention, mirroring those examined under Article 8 in connection with the Section 8(4) regime of the RIP Act, the Court referred to the precedent set in Weber and Saravia v. Germany, (2006). In Weber and Saravia, the Court had ruled that legislation allowing secret surveillance, specifically in the context of strategic interception, impinged on the first applicant’s right to freedom of expression under Article 10, as she was a journalist communicating on topics subject to strategic monitoring. [para. 105-106]
The Court noted that the potential monitoring of her telecommunications raised concerns about source confidentiality and freedom of the press. However, the Applicants, while not claiming to be journalists, argued under Article 10 without presenting distinct issues beyond those raised under Article 8. As the Applicants did not demonstrate that they communicated for journalistic purposes, and the nature of their work did not align with the concerns in Weber and Saravia, the Court concluded that a separate violation under Article 10 was not substantiated. Despite the Tribunal acknowledging victim status and the absence of government objection, the Court, empowered to examine jurisdiction matters ex officio, found that the Applicants failed to establish victim status. Consequently, the Court deemed this specific complaint inadmissible under Article 34 of the Convention. [para. 107-111]
In conclusion, the Court, in a unanimous decision, consolidated the applications, striking out complaints related to the receipt of intelligence from foreign agencies. It declares the complaints under Article 8 of the Convention, concerning the section 8(4) regime of RIPA, as admissible and found a violation of Article 8 in this regard. The complaints under Article 10 were deemed inadmissible. The Court decided not to separately examine the admissibility and merits of complaints under Article 13 read together with Article 8.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling does not explicitly expand or contradict freedom of expression but underscores the significance of privacy rights in the context of electronic communications. The Court’s decision affirms that the interference with Article 8 rights, particularly in the realm of electronic communications, occurs within the territorial jurisdiction where the searching, examination, and use of intercepted communications take place. By rejecting the government’s argument that interference only happens where the individuals are located, the ruling sets a precedent aligning with the principle that the impact on privacy is decisive, irrespective of the individual’s physical location. However, the Court’s denial of a separate violation under Article 10, given the Applicant’s failure to demonstrate communication for journalistic purposes, highlights the nuanced considerations surrounding the intersection of freedom of expression and privacy rights in the evolving landscape of surveillance and technology.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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