Navigating the Dataverse: Privacy, Technology ... - The ICHRP

came to rule on the Electronic Test Facility at Capenhurst, Cheshire, which allegedly
intercepted all calls between Ireland and the UK, the judges were able to draw on an
elaborate set of legal principles derived from its case law:
In its case-law on secret measures of surveillance, the Court has developed
the following minimum safeguards that should be set out in statute law in
order to avoid abuses of power: the nature of the offences which may
give rise to an interception order; a definition of the categories of people
liable to have their telephones tapped; a limit on the duration of telephone
tapping; the procedure to be followed for examining, using and storing the
data obtained; the precautions to be taken when communicating the data
to other parties; and the circumstances in which recordings may or must
be erased or the tapes destroyed. 165
These are standard “rule of law” criteria: detailed instructions intended to ensure that
state officials act according to law, with minimal discretion, and designed to maximise
efficiency. 166 Focusing on them has, of course, allowed the Court to sidestep the
much trickier question of whether “interferences” with article 8 (found in each of these
examples) are in a given case “necessary in a democratic society in the interests of
national security, public safety, economic wellbeing...” and so forth.
It is appropriate to return to S. and Marper at this juncture. That case concerned
the retention by English authorities of fingerprints, DNA data and cell samples from
individuals charged with crimes but subsequently acquitted. (At the time, S. was 12
years of age.) The Court found a breach of Article 8, ruling against the state’s powers
of retention due to their “blanket and indiscriminate nature [which] fails to strike a fair
balance between the competing public and private interests”. 167
Three aspects of the Court’s ruling are worth exploring a little further:
1. The court referred to the EU’s 1995 Data Protection Directive and to the UK’s
implementing legislation of 1998 in a curiously inconclusive manner. Since the
Data Protection Directive refers directly to the “right to privacy”, this appears to
be one of very few areas where the Council of Europe and EU bodies explicitly
share oversight. Interestingly, however, the Data Protection Act 1998 doesn’t
merit a mention in the UK’s own judicial proceedings on the matter. 168 This may be
due to the broad exception in the Data Protection Directive concerning criminal
proceedings and national security (more on this below).
was, therefore, no domestic law regulating the use of covert listening devices at the relevant time.”
165 Liberty and others v. United Kingdom, judgment of 1 July 2008, para. 63. The petitioners” claim, which the
government did not deny, was that the facility was (Ibid., para. 5.) “built to intercept 10,000 simultaneous
telephone channels coming from Dublin to London and on to the continent. Between 1990 and 1997 the
applicants claimed that the ETF intercepted all public telecommunications, including telephone, facsimile
and e-mail communications, carried on microwave radio between the two British Telecom’s radio stations
(at Clwyd and Chester), a link which also carried much of Ireland’s telecommunications traffic.”
166 The “rule of law” in this sense is best captured in the German notion of rechtsstaat. The Court found
a violation of Art. 8 on grounds of legality. See ibid., para. 69: “[T[he Court does not consider that the
domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection
against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the
state to intercept and examine external communications. In particular, it did not, as required by the
Court’s case-law, set out in a form accessible to the public any indication of the procedure to be followed
for selecting for examination, sharing, storing and destroying intercepted material. The interference with
the applicants’ rights under Article 8 was not, therefore, ‘in accordance with the law’.”
167 S. and Marper, para 125. The powers failed the test of proportionality. They comprised a “disproportionate
interference with the applicants’ right to respect for private life and cannot be regarded as necessary in
a democratic society”. (At time of writing, the UK has not yet altered its policy on DNA retention).
168 See [2004] UKHL 39; [2002] 1 WLR 3223.
52 Navigating the Dataverse: Privacy, Technology, Human Rights