EU's highest court delivers blow to UK snooper's charter


#1

theguardian.com/law/2016/dec/21/eus-highest-court-delivers-blow-to-uk-snoopers-charter

**EU’s highest court delivers blow to UK snooper’s charter

“General and indiscriminate retention” of emails and electronic communications by governments is illegal, the EU’s highest court has ruled, in a judgment that could trigger challenges against the UK’s new Investigatory Powers Act – the so-called snooper’s charter. Only targeted interception of traffic and location data in order to combat serious crime – including terrorism – is justified, according to a long-awaited decision by the European court of justice (ECJ) in Luxembourg.

The finding came in response to a legal challenge initially brought by the Brexit secretary, David Davis, when he was a backbench MP, and Tom Watson, Labour’s deputy leader, over the legality of GCHQ’s bulk interception of call records and online messages…At issue was whether there are EU standards on data retention that need to be respected by member states in domestic legislation. The result, though immediately significant, could prove academic once the UK has withdrawn from the EU and the ECJ no longer has jurisdiction over the UK.

In a summary of the ruling, the court said electronic communications allow “very precise conclusions to be drawn concerning the private lives of persons whose data has been retained”.

It added: “The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious.

“The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.

“Legislation prescribing a general and indiscriminate retention of data … exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society.” Prior authorisation by a court or independent body to access retained data is required for each official request, the ECJ said.

Before becoming Brexit minister, Davis travelled to Luxembourg to hear the case. He argued that the British government was “treating the entire nation as suspects” by ignoring safeguards on retaining and accessing personal communications data…The Dripa case was heard by 15 ECJ judges. It coincided with successive atrocities in Paris, Brussels and Nice that reinforced political demands for expansion of powers to intercept emails and phone calls to help catch Islamic State militants operating on the continent. Lawyers for the UK government maintained that intercepted communications have been at the heart of every terrorist case investigated by police and the security services in recent years…

Martha Spurrier, director of the human rights group Liberty, said: “Today’s judgment upholds the rights of ordinary British people not to have their personal lives spied on without good reason or an independent warrant. The government must now make urgent changes to the Investigatory Powers Act [IPA] to comply with this.

“This is the first serious post-referendum test for our government’s commitment to protecting human rights and the rule of law. The UK may have voted to leave the EU – but we didn’t vote to abandon our rights and freedoms.” Liberty is preparing to challenge the IPA in court.

Jim Killock, executive director of the Open Rights Group, said: “Blanket surveillance of our communications is intrusive and unacceptable in a democracy. **


#2

So the EU redeems us from our own folly and our government’s obsession with indiscriminate mass surveillance.

“Down with privacy” I guess post-Brexit, if the British establishment chooses to ignore the ECJ ruling?

More like a “red, white and blueReich than a “red, white and blue Brexit” if you ask me…

theguardian.com/politics/2016/dec/06/theresa-may-calls-for-red-white-and-blue-brexit

**Theresa May calls for ‘red, white and blue Brexit’

British PM refuses to elaborate on negotiating strategy, saying she plans to keep cards close to her chest**

The good news: whether Britain is in or out of the EU, British judges will still be using this privacy benchmark to hold British ministers and their laws to account.

So it’s a final major blow - or gift depending on your perspective - from the EU to Brexit Britain. Thanks guys! :smiley:


#3

forbes.com/sites/emmawoollacott/2016/12/21/uk-mass-surveillance-ruled-illegal-by-eu-court/#717fe17069ae

**UK Mass Surveillance Ruled Illegal By EU Court

The European Court of Justice has ruled that the UK’s planned bulk collection of communications data is illegal, casting prime minister Theresa May’s surveillance plans into disarray.

Europe’s highest court - to which the UK is still subject - says that the provision for mass surveillance contained in the recently-passed Investigatory Powers Act ‘cannot be considered to be justified within a democratic society’…**


#4

I guess this is similar to the U.S. government retaining call data; not the content of calls but the calls made by whom and to whom.

I have never personally opposed the government doing that. Why should the government know less about us than, say, Verizon and those to whom Verizon sells information do?

They don’t review the stuff unless they’re investigating a particular person or group (how could they?) or if a pattern of calls, to say, Yemen, turns up by computer analysis.

But this is the EU telling Britain what it can or cannot do to protect itself. Maybe British courts would ban it too, but that’s not what happened here. If I was a Brit, I would resent this ruling and be encouraged to think Brexit was a good idea. If the EU courts can tell Britain what it can or can’t do, I wouldn’t want any part of the EU.


#5

That comes as no surprise to me Ridgerunner.

What does though, is your apparent surprise and dismay that a Member State of a politico-legal Union is unable to act illegally by disobeying the law of that Union while it remains a Member State.

The UK is not going to withdraw from the EU until at least 2019 (but could retain EU law and judicial oversight for longer depending on whether the transitional deal sought by the government is granted).

This legal challenge was initially brought to the ECJ by British Court of Appeal judges along with none other than the Brexit secretary, David Davis, when he was a backbench MP, and Tom Watson, Labour’s deputy leader.

It wasn’t an unsolicited intervention and now that the ruling has been given, yes, we must abide by it.

The ruling is not only concerned with Dripa, which will be repealed in 10 days anyway without the EU, as it naturally expires. It does however have serious implications for the new snooper’s charter, the Investigatory Powers Act 2016, which is likely to be amended now.

The Investigatory Powers Act 2016 grants the British government extensive powers to track the entire population’s web browsing history for two years and allow industrial scale state hacking of phones and computers.

Am I in favour of that? Absolutely not and neither probably are the majority of Brits, as you can discern perhaps from the fact that the case was spearheaded at the ECJ by none other than arch-Brexiteer David Davis - our Brexit Secretary.

If the American people are comfortable with enormous databases recording every website visited by every citizen, which can be accessed by not only the police and security services but many other public authorities without the need for suspicion of criminality or prior approval from a judge or other official, fine.

But I for one am well pleased that the EU has given British courts the opportunity to uphold the privacy rights of UK citizens and ammend the Investigatory Powers Act under strict safeguards. And so are many other people in the UK.


#6

With reference to the more limited Dripa, which the Investigatory Powers Act looks to go beyond, please read:

theguardian.com/world/2016/dec/21/eu-ruling-means-uk-snoopers-charter-may-be-open-to-challenge#comment-89876650

**The ruling itself relates to a much more limited British law – the Data Retention and Investigatory Powers Act 2014, known as Dripa – which expires under a sunset clause at the end of this month. That law required the telecom companies to hold all their customers’ communications data – the who, when and where they contacted by phone, text or email – for 12 months so it could be accessed by the police, security services and other public bodies.

The ECJ ruling clarified, at the request of British court of appeal judges, that EU data retention laws say such blanket retention of personal confidential data is unlawful under the EU’s fundamental charter of rights and its directive on privacy and electronic communications.

The landmark ruling says the state can carry out mass surveillance programmes only if they are targeted and not implemented on a “general and indiscriminate” basis. Targeting should be done by reference to time, geographical area or named persons. The ruling also lays down that the communications data can only be used for the purposes of fighting serious crime and access should be authorised by a court except in the most urgent cases.

The ruling is enough to strike down Dripa, should the UK court of appeal accept this “clarification” from the EU’s highest judges, but it will be academic as Dripa will be repealed in 10 days anyway.

However, it does have serious implications for the new snooper’s charter, the Investigatory Powers Act 2016 that includes the data retention powers the EU court has declared to be unlawful without the proper safeguards and which comes into force from 1 January…

The ruling means ministers can no longer be certain that the new snooper’s charter will survive any privacy legal challenges in the British courts. The ruling is unlikely to mean that the Investigatory Powers Act is struck down by British judges, but it may well require further amendment.

.**


#7

The EU court ruling does dismay, but it in no way surprises. Britain handed over much of its sovereignty to the EU apparatus, so it’s no surprise that the surrender could have many consequences that might or might not meet with the approval of the British people.
I think that’s really what Brexit was all about; regaining full sovereignty over the country.

I really do think it’s silly to worry about phone call data bases that only contain the numbers called and from where. I have no doubt at all that any number of commercial enterprises and government entities know a lot more about me than that. I think if people really knew how little privacy they have, they would be shocked.

But on the other hand, let’s suppose the new suspect in the Berlin attack really is the perpetrator. Do you think law enforcement should be prevented from being able to track the man’s contacts?

Again, I’m not a Brit and I don’t purport to speak for Brits. Nor do I know the details of the law there regarding telephonic data bases. I’m speaking from an American standpoint about laws that might or might not be similar.


#8

Apart from the Blair years, most British governments - which were Tory - had grudgingly accepted the harsh reality that they didn’t have any fondness for Brussels but needed to be within the EU to protect economic interests.

As such, the UK has more opt-outs then any other Member State and we’ve arguably benefitted the most from the Single Market Britain joined the EU as a way to avoid economic stagnation. The UK’s per capita GDP relative to the EU founding members’ declined massively from 1945 to 1972. The EEC saved our bacon.

And we got Thatcher’s rebate, opt-outs from the Euro and Schengen, we never signed up to the Economic and Monetary Union (EMU), from the Lisbon Treaty, Britain also secured opt-outs from justice and home affairs legislation and we’re not a signatory to the Charter of Fundamental Rights.

So to be fair, we’ve had it good. Too good, actually.

Most EU partners and EU voters abroad have grown tired of the UK being half-out of the EU and having so many special priviliges and exceptions while reaping an economic bonanza from the free movement of goods, capital, services and labour that has made London the crossroads of the world.

That’s why the EU simply wants Britain to leave. Immediately.

It is the UK that is still holding back because - yet again - it wants yet another special derogation: full continued membership of the Single Market post-Brexitvwithout freedom of movement for EU citizens.

Brexit is occupying 99.9% of the political debate here, its barely registering at 10% in the rest of the EU.

Our collective divide over the EU will continue to create political instability in Britain at our own hurt.

The sad truth Ridgerunner is that with a remarkably slender 51.8% victory for Brexit and far clearer majorities for Remaining in the EU in Scotland (62.0%), Northern Ireland (55.8%), Gibraltar (96% - yes, by 96%), Greater London (59.93%) and 48% overall in favour of the EU, the UK is set to continue on the course it has been on since 1973. Recall that the original referendum to join the EU back in the 1970s registered over 67% in favour, far more decisive, and yet the Eurosceptics back then refused refused to abide by that far higher mandate.

The only difference is that the prospect of actually leaving the EU has, oddly and for the first time, fomented the creation of strong Europhile movement among the contingent of the British population that favours Remaining.

It’s true that people don’t know what they’ve lost until its gone, or rather could soon be gone.

And so, the naval-gazing chaos over Europe will continue apace.


#9

I understand you are a EU supporter and obviously others are too. Admitting that, as an American, I might be more distrustful of governance by other nations than perhaps Europeans are, I still support the right of the Brit people to cast off from the EU if they want to do it, and I can understand why they might want to do that when foreign or “international” bodies tell them what the law will be in Britain.


#10

This is an awful argument you are presenting. “Our own folly” is about as disingenuous to the British people as Clinton’s “basket of deplorables” was to the American people.

Basically, your argument is that the British, as a people, are incapable of ruling themselves and therefore ought to be ruled by a bureaucracy made up of foreign oligarchs who know what is better for the British people than the people themselves, and you are citing this one instance to make your entire case.

As to whether May’s government and the “British establishment” are truly representative – including in this instance – of Brexit supporters remains to be demonstrated.


#11

What should also be understood is that Brexit/Remain is not equivalent to Democrat/Republican or Trump/Anti-Trump, if one wishes to draw allusions with the U.S. Your recent election campaign was seriously divisive but it is still just an electoral race. Every president has a term limit. So the people who dislike Trump in your country just have to accept his tenure for at most 8 years and at least 4 years. Brexit is different. It is an event that defined our country for decades, if not longer, and has become as much an identity war as a debate concerning economics.

For Remainers, we are set to lose our identity and rights as EU citizens, the future of economic prosperity, opportunity and cosmopolitanism we desired “robbed from us” (as some see it).

For Brexiteers, their country could be subsumed (as they see it) within an EU federal “superstate” if we don’t leave now.

So if you want to draw comparisons with America, draw comparisons with your Civil War between Unionists and Confederates. Not an election campaign in 2016. In less enlightened times, people would have taken up arm’s over the issues Britain is currently dealing with.

Its serious, long-lasting and very raw for Brits on both sides. For a pro-UK and pro-EU Scottish Briton, it is even more raw given that my country has a rolling Scottish independence debate that has been re-enlivened by this. That too is serious, for everyone involved. We must live with the consequences for the rest of our lives either way.

Admitting that, as an American, I might be more distrustful of governance by other nations than perhaps Europeans are, I still support the right of the Brit people to cast off from the EU if they want to do it, and I can understand why they might want to do that when foreign or “international” bodies tell them what the law will be in Britain.

I can understand it too, even though I and many others disagree.

But I must also agree with your first point. A good number of Americans, despite living under a continental federative Union yourselves, seem to be inherently ill-disposed to European supranationalism. Given our history, Europeans have deep seated reasons for our unique sui generis system of supranational, transnational government.

The two most important years in the European collective memory are 1945 and 1989.

The 1945 defeat of Nazi Germany was followed by the Treaty of Paris in 1951, creating the first supranational EU institution - the "High Authority’, now known as the EU Commission.

The 1989 fall of the Berlin Wall and terminal weakening of the soon-to-dissolve Soviet Union was followed in 1992 by the Maastricht Treaty: introducing EU citizenship, Schengen and the Euro.

We have reasons for our system of government that non-Europeans may find it harder to understand, over-and-above the obvious economic advantages that Britons on both sides of this decades-spanning dispute over Europe have always been jealous to retain. This is especially so for Germans and French.

The fact that the principal architect and founder of the EU is currently a candidate for canonization in the Catholic Church should be a sign that its origins are not some sinister, bureacratic attempt to subvert national identities.


#12

“Today’s judgment upholds the rights of ordinary British people not to have their personal lives spied on without good reason or an independent warrant. The government must now make urgent changes to the Investigatory Powers Act [IPA] to comply with this.

Hear Hear!

Let’s not forget though that while this judgment is sensible and the IPA one of the most horrific laws ever passed, the debate on Britain’s membership of the EU was one that rested on many issues.


#13

I an clearly referring in a critical manner to our present government. This legal action was raised from within the UK.

Basically, your argument is that the British, as a people, are incapable of ruling themselves and therefore ought to be ruled by a bureaucracy made up of foreign oligarchs who know what is better for the British people than the people themselves, and you are citing this one instance to make your entire case.

As to whether May’s government and the “British establishment” are truly representative – including in this instance – of Brexit supporters remains to be demonstrated.

Nope, never said any of that.


#14

Very true on both accounts. :thumbsup:


#15

Oh, I don’t know…

“Our own folly” seems to spread the responsibility for the folly merely to those who oppose staying in the EU, as if anyone who supported Brexit must also support the “Snooper’s charter” and anyone who is against the charter must also be for remaining in the EU.

You attempted to make the connection when you held the EU court up as the “redeemer” of the British people, as if the people themselves even support the folly and couldn’t without help of the EU court determine it to be folly on their own.

You joined the dots that aren’t necessarily properly connected in the first place. I merely pointed that out. And now you are denying that you drew those lines to begin with. What was your point, then?

That the EU didn’t actually “redeem” anyone from their own folly because the people wouldn’t have made the folly? Or are you going to stand by the implications of what you originally wrote?

Who, then, is the “our” that you refer to in “our own folly?” Are YOU also included? Are YOU also responsible for the charter? It would seem so by your wording. If not, then please specify who precisely was “redeemed” by the EU court from “our” own folly?

I just don’t think you have a point to make here, except that the lawmakers/courts in the UK can make some rather hideous decisions. On the other hand, so can the EU lawmakers/courts. The bigger question is: To whom ought those lawmakers/courts be ultimately responsible?

That bigger question needs to address whether a nation of peoples should govern itself or whether that governance is more properly undertaken by unelected foreign bureaucrats. If that is the case you want to argue, then do so.


#16

I honestly think you are straining at a gnat here and overly-analysing my statement, grammar-Nazi style, if I may say so :smiley:

I am referring specifically and singularly to the UK government.

I know exactly what I intended when I wrote what I did and you have misunderstood my meaning.

Apologies for any unintentional confusion on my part.

You attempted to make the connection when you held the EU court up as the “redeemer” of the British people, as if the people themselves even support the folly and couldn’t without help of the EU court determine it to be folly on their own.

I stated quite clearly in my discussions with Ridgerunner that a majority of the British people and even arch-Brexiteer David Davis were opposed to this law. So the folly lies with the UK government andTory high-command.

You joined the dots that aren’t necessarily properly connected in the first place. I merely pointed that out. And now you are denying that you drew those lines to begin with. What was your point, then?

That the EU didn’t actually “redeem” anyone from their own folly because the people wouldn’t have made the folly? Or are you going to stand by the implications of what you originally wrote?

:confused:

Who, then, is the “our” that you refer to in “our own folly?” Are YOU also included? Are YOU also responsible for the charter? It would seem so by your wording. If not, then please specify who precisely was “redeemed” by the EU court from “our” own folly?

“Our” refers to our government, Britain - the British government in relation to the EU.

I just don’t think you have a point to make here, except that the lawmakers/courts in the UK can make some rather hideous decisions. On the other hand, so can the EU lawmakers/courts. The bigger question is: To whom ought those lawmakers/courts be ultimately responsible?

Our court saw fit to appeal to the EU court for clarification as to the position of European law on this matter.

It was an exercise in judicial dialogue between a national court and the supranational legal order which we currently remain part of until we leave.

That bigger question needs to address whether a nation of peoples should govern itself or whether that governance is more properly undertaken by unelected foreign bureaucrats. If that is the case you want to argue, then do so.

The EU is not unrepresentative of Britain.

Every EU institution has distributed representation from all the Member States.


#17

Of course not, that would be targeted for the purposes of a serious crime, not indiscriminate and thereby “exceeding the limits of what is strictly necessary and cannot be considered to be justified within a democratic society” (ECJ judgement)

Again, I’m not a Brit and I don’t purport to speak for Brits. Nor do I know the details of the law there regarding telephonic data bases. I’m speaking from an American standpoint about laws that might or might not be similar.

That’s perfectly OK, I always appreciate your input :slight_smile:

“…All men, then, should …] be joined in mutual and just regard for one another’s opinions…For discussion can lead to fuller and deeper understanding of religious truths; when one idea strikes against another, there may be a spark…”

- Pope St. John XXIII, AD PETRI CATHEDRAM (On Truth, Unity and Peace), 1959


#18

Of course, if the data is gone, they can’t target it. There is nothing requiring the cell phone companies to store it if the state doesn’t require it.


#19

No one is saying that information, of itself, cannot be stored.

Most people just do not endorse blanket, indiscriminate storing of communications data that can be abused by the authorities and/or other organisations, without there being specific, legal reasons for doing so. Safeguards are necessary, the principle of limited government requires that no?

I think it is right and proper that the executive should be questioned in this manner and that people should be wary of surrendering our private autonomy and freedoms to any government.

Always remember that the defining and distinguishing feature of “modern liberty” is private rights and freedoms, in contrast to “ancient liberty” which was essentially communitarian and quite totalitarian by our standards.

As Benjamin Constant famously noted in 1819:

oll.libertyfund.org/titles/constant-the-liberty-of-ancients-compared-with-that-of-moderns-1819

**Benjamin Constant, The Liberty of Ancients Compared with that of Moderns (1819) [1819]

Thus among the ancients the individual, almost always sovereign in public affairs, was a slave in all his private relations. As a citizen, he decided on peace and war; as a private individual, he was constrained, watched and repressed in all his movements; as a member of the collective body, he interrogated, dismissed, condemned, beggared, exiled, or sentenced to death his magistrates and superiors; as a subject of the collective body he could himself be deprived of his status, stripped of his privileges, banished, put to death, by the discretionary will of the whole to which he belonged…

It follows from what I have just indicated that we can no longer enjoy the liberty of the ancients, which consisted in an active and constant participation in collective power. Our freedom must consist of peaceful enjoyment and private independence…

It follows that we must be far more attached than the ancients to our individual independence. For the ancients when they sacrificed that independence to their political rights, sacrificed less to obtain more; while in making the same sacrifice! we would give more to obtain less. The aim of the ancients was the sharing of social power among the citizens of the same fatherland: this is what they called liberty. The aim of the moderns is the enjoyment of security in private pleasures; and they call liberty the guarantees accorded by institutions to these pleasures…

Individual liberty, I repeat, is the true modern liberty. Political liberty is its guarantee, consequently political liberty is indispensable. But to ask the peoples of our day to sacrifice, like those of the past, the whole of their individual liberty to political liberty, is the surest means of detaching them from the former and, once this result has been achieved, it would be only too easy to deprive them of the latter…

Therefore, Sirs, far from renouncing either of the two sorts of freedom which I have described to you, it is necessary, as I have shown, to learn to combine the two together.
**


#20

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