The government has just been slammed by another court ruling. But it’s claiming victory.

The Royal Courts of Justice and Theresa May regarding climate change
Steve Topple

The government just been slammed in the first round of a court case brought against it by a human rights campaign group. But it has publicly come out and announced that it won case…

The most “extreme” surveillance legislation. Ever.

The civil and human rights campaign group, Liberty, took the government to court over the Investigatory Powers Act 2016. The act, which Reporters Without Borders called “the most extreme surveillance legislation in UK history”, has been contentious from the outset. The Guardian said it was “unmatched by any other country in western Europe or even the US”:

It legalises hacking by the security agencies into computers and mobile phones and allows them access to masses of stored personal data, even if the person under scrutiny is not suspected of any wrongdoing.

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So Liberty took the government to court. It focused on part 4 of the act, which allows the storage by tech companies of people’s personal data. Liberty claimed that this was a breach of people’s right to privacy, specifically noting that the Act forces tech companies to retain data:

  • With no independent authorisation by a court or independent agency.
  • For crime-fighting purposes extending far beyond “serious crime”.
  • For a wide range of other non-crime purposes, including collecting taxes and fines owed and regulating financial services.

The judges in the case agreed. Lord Justice Singh and Mr Justice Holgate said [pdf, p39]:

Part 4 of the Investigatory Powers Act 2016 is incompatible with fundamental rights in EU law…

It said [pdf, p39] the government must change the legislation; something it had already agreed to do.

Wait, what…?

But following the ruling, the government quickly issued a statement called “Home Office wins judgment to maintain powers to keep people safe”.

Security Minister Ben Wallace said:

We are delighted that the Court has agreed with the government on all counts in this judgment.

Liberty has for years created misplaced fear about this legislation, and we are pleased that the Court recognises the importance of communications data in fighting crime and keeping families and communities safe.

This sensible, pragmatic judgment rightly balances all the rights of individuals with protecting people’s security.

So who is right?

Mixed messages

The judges in the case did not agree [pdf, p30] with Liberty that the Act was a breach of EU law because it allows for the “general” and “indiscriminate” collection of people’s data. This is where the government claimed victory. So there were positive outcomes for both sides.

But what the government failed to mention is that the judges ‘stayed‘ numerous parts of the case; that is, they essentially put them on hold to see what the government does.

The first stay [pdf, p26] relates to Liberty’s claim that the Act does not comply with Article 15 of the e-Privacy directive. In lay terms, the government claims [pdf, p23] it’s using the Investigatory Power Act to protect “public health, tax matters, and regulation of financial services/markets and financial stability”. Liberty claims that EU legislation does not allow for this. Then the second stay [pdf, p38] relates to Liberty claiming [pdf, p37] there are insufficient safeguards for the public in the Act.

Both these stays are waiting on a decision by the European Court of Justice as to whether the Investigatory Power Act is illegal.

Not over yet

Martha Spurrier, director of Liberty, said:

The court has done what the government failed to do and protected… vital values – but today’s ruling focuses on just one part of a law that is rotten to the core. It still lets the state hack our computers, tablets and phones, hoover up information about who we speak to, where we go, and what we look at online, and collect profiles of individual people even without any suspicion of criminality. Liberty’s challenge to these powers will continue.

Liberty tweeted:

With legal challenges to three other parts of the Act in the pipeline, it appears Liberty is not done with the Investigatory Powers Act yet. So, the government may have claimed victory a little too soon.

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Featured image via Dan Perry – Flickr and 10 Downing Street – YouTube

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