Challenge to Britain’s TEMPORA program and use of the NSA’s PRISM program

Big Brother Watch and Others v. the United Kingdom, Application No. 58170/13, Communicated Case (Jan. 9, 2014)

On October 3, 2013, a challenge to Britain’s surveillance of the contents and metadata of emails and telephone calls through the GCHQ’s TEMPORA program and the UK Intelligence Services’ use of the NSA’s PRISM Program was filed in the European Court of Human Rights (ECtHR).

The challenge, brought by English PEN, the Open Rights Group and Big Brother Watch, as well as by a German activist, seeks a declaration that TEMPORA and the UK’s use of PRISM violate the right to privacy in Article 8 of the European Convention on Human Rights. The lawsuit aims to force the UK government to tighten its current laws regulating surveillance, mainly, the Regulation of Investigatory Powers Act (RIPA).

The coalition filed in the ECHR after the British government said that no such challenge could be brought before its domestic courts and that a complaint could be made only to the Investigatory Powers Tribunal (IPT), which does not hold its proceedings in public. The challenge argues that the IPT is an inadequate forum and therefore the claim can be brought directly to the ECHR, citing as justification, Kennedy v United Kingdom (2011) 52 EHRR [119].

Furthermore, the petitioners argue that the investigation, described above, by the Intelligence and Security Committee (ISC) was inadequate in that “the ISC … only looked at intelligence information which GCHQ had specifically requested from the US, in relation to particular individuals who were subject to interception warrants in the UK.  It did not look at other information received from the NSA by GCHQ or other UK government agencies”.

The challenge is supported by the expert witness statements of Cindy Cohn, Legal Director of the EFF, and Dr. Ian Brown, Senior Research Fellow at the Oxford Internet Institute at the University of Oxford.

By letter dated January 9, 2014, the Deputy Section Registrar for the Fourth Section of the ECHR informed the applicants that the court had completed its investigation and had decided to give priority to their application.

On April 11, 2014, however, the ECHR informed the petitioners that it had decided to adjourn their case pending a judgment by the IPT in Liberty & Others vs. the Security Service, SIS, GCHQ, IPT/13/77/H. The IPT issued Judgments in that case on December 5, 2014 and February 6, 2015.

On March 2, 2015, the applicants filed a submission with the ECHR asking that the adjournment be lifted in the light of the IPT’s decisions of December 5, 2014 and February 6, 2015, and that the case be given priority in accord with the ECHR’s determination of January 9. 2014.

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