The Government’s mass surveillance powers are unlawfully wide and have “inadequate safeguards” to protect journalistic communications, the High Court has heard.
Human rights group Liberty is bringing a second legal challenge, supported by the National Union of Journalists, against parts of the Investigatory Powers Act (IPA) which allow intelligence agencies to obtain and store communications data, and take remote control of electronic devices through “bulk hacking”.
Liberty claims that the Government’s powers under IPA – dubbed the “Snoopers’ Charter” by critics – are too wide, and therefore breach citizens’ human rights to privacy and freedom of expression.
At the start of a week-long hearing in London on Monday, the group’s barrister Martin Chamberlain QC explained that IPA “provides for a wide expansion of ‘bulk’ secret surveillance powers”.
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He said: “These powers permit the interception or obtaining, processing, retention and examination of the private information of very large numbers of people – in some cases, the whole population.
“They also permit serious invasions of journalistic and watchdog organisations’ materials and lawyer-client communication.”
He told the court that intelligence agencies could intercept data which “show, for example, that an individual has accessed a website containing information about sexual health or abortion or suicide”, adding that such information, once stored, “would be searchable without a warrant”.
Chamberlain warned of “the dangers of secret surveillance regimes”, which arose from “the possibility of abuse of power necessarily exercised in secret, and the generally chilling effect on individuals’ communications and expression of ideas caused by the existence of such powers”.
He also pointed to the “inherent dangers” of bulk hacking powers, by which the intelligence services could take “remote control of a device, for example, to turn mobile phones with cameras into recording devices … or to log keystrokes to capture passwords”.
Chamberlain added that vulnerabilities which have been built into software to allow law enforcement access caused “real and significant risks” that third parties could exploit them.
He referred to the “Wannacry vulnerability”, which allowed hackers to infect hundreds of thousands of computers worldwide with ransomware in a 2017 attack, saying it was “an example of the kind of unintended consequences that state bulk hacking activities… can have”.
Jude Bunting, representing the NUJ, argued in written submissions that there were “inadequate safeguards” to protect journalistic communications, which he said could have “a significant chilling effect on the exchange of information between journalists and their sources”.
Sir James Eadie QC, representing Home Secretary Sajid Javid and Foreign Secretary Jeremy Hunt, submitted that the powers provided by IPA “strike an appropriate balance between security and individual privacy”.
He said in his written argument: “The powers under challenge are of critical importance to, and are effective in securing, the protection of the public from a range of serious and sophisticated threats arising in the context of terrorism, hostile state activity and serious/organised crime”.
Sir James added that there was “a variety of strong safeguards” built into IPA to protect journalistic material.
In a statement ahead of the hearing, Megan Goulding, a lawyer at Liberty, said: “In creating the Snoopers’ Charter, the UK Government has attempted to legitimise the most sweeping and intrusive mass surveillance powers to be found anywhere in the democratic world.
“These powers allow the state to collect the messages, location and browsing history of innocent, ordinary people without grounds for suspicion.
“We are bringing this challenge because this law has no place in any credible democracy, least of all one with such a long and proud history of defending individual liberty.”
At a pre-trial hearing last week, Liberty said documents disclosed to it by the Government revealed that MI5 has engaged in “extraordinary and persistent illegality” in the way it retains personal data obtained under IPA.
The latest case follows a High Court ruling in April 2018 on Liberty‘s challenge to bulk retention powers under IPA, by which the Government can order telecommunications companies to store people’s data.
In their ruling, Lord Justice Singh and Mr Justice Holgate found certain parts of IPA were “incompatible with fundamental rights in EU law” and ordered the Government to rewrite them within six months.
The same two judges will hear the parties’ submissions over the course of a week, and are expected to reserve their judgment.
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