European Court of Justice will determine the legality of mass surveillance in the UK

The Investigatory Powers Tribunal has ruled that the legality of mass surveillance in the UK should be decided by the European Court of Justice. The ECJ has already ruled that governments engaging in "general and indiscriminate retention" of data is illegal, and this led campaign group Privacy International to bring a case.

The ruling means that only targeted interception of data and communication is permissible, something which the Investigatory Powers Act -- also known as the snooper's charter -- goes far beyond.

The IPT conceded that some data collection is "essential to the protection of the national security of the United Kingdom," but this is not yet the end of the story. UK judges have said that blocking the "general and indiscriminate retention" of data "would effectively cripple the security and intelligence agencies' bulk data capabilities."

Statements from UK intelligence agencies, the foreign secretary and the home secretary made clear the importance the government places on being able to collect data in bulk. They pointed to instances of terrorist identification as justification for the action.

The IPT ruling states: "By the end of the hearing it was clear that both parties either agreed to or saw the necessity for a reference to the [ECJ's] grand chamber, and the need for it is, we suggest, obvious from this judgment."

Privacy International is concerned about how bulk data collection could be misused. Legal officer Millie Graham Wood said:

We need strict safeguards against the state accessing highly sensitive information about us. The UK government and the investigatory powers tribunal have said that the vital and fundamental safeguards as set out in the Watson judgment, such as requiring a judge to approve access to highly sensitive information, should not apply to the information held by intelligence agencies. Privacy International fundamentally disagree.

Even when bulk metadata is used for the purposes of national security, there should be strong safeguards to protect our sensitive personal data.

She went on to say:

Nevertheless, both Privacy International and the government agree on one thing -- the necessity of referring this matter to the European court of justice. We look to the CJEU to reiterate that the very sensible Watson judgment does still apply to our intelligence agencies when they accessing massive troves of our personal data, whether or not it is in the name of national security.

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