Communicated on 5 January 2015
FOURTH SECTION
Application no. 62322/14
BUREAU OF INVESTIGATIVE JOURNALISM and Alice ROSS
against the United Kingdom
lodged on 11 September 2014
STATEMENT OF FACTS
The first applicant, the Bureau of Investigative Journalism, is a media organisation based in London. The second applicant, Ms Alice Ross, is a journalist working for the first applicant. They are represented before the Court by Leigh Day & Co, solicitors practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The applicants
The Bureau of Investigative Journalism (BIJ) (the first applicant) is an award-winning, independent, non-profit organisation which works to produce high quality, public interest journalism. It undertakes in-depth investigations into the governance of public, private and third sector organisations, and its content is freely available. In order to reach as wide an audience as possible, it regularly collaborates with larger media organisations in the United Kingdom and elsewhere. Its investigations have sometimes touched on matters of national security, corruption, bribery and other matters of interest to the intelligence services of the United Kingdom and of other States, such as drone warfare and the activities of State agencies involved in surveillance. Recently, BIJ has been investigating the use by the Secretary of State of the power to strip an individual of British citizenship as a result of national security risks. It often relies on sources of information (material and human) from several different States. Several of its investigations have been critical of the Government of the United Kingdom.
Alice Ross (the second applicant), is a reporter with the BIJ. She specialises in national security, conflict, counter-terrorism and foreign policy and in the course of her investigations is likely to speak to individuals and organisations of interest to the United Kingdom’s intelligence services. One of her current investigations concerns the use of drones in Pakistan and she regularly communicates with individuals in that country, including family members and associates of persons killed in drone strikes. She believes that these communications may be of interest to intelligence services in the United Kingdom and elsewhere. As part of this investigation, she has identified individuals who have had their British citizenship revoked on purported terrorism grounds and has communicated with individuals connected to some of these persons who are now based in Pakistan, Afghanistan and Turkey. She believes that a number of these individuals are being monitored by the United Kingdom’s intelligence services.
Due to the nature of the investigative journalism taking place, the applicants contend that it is very likely that their communications have come to the attention of the United Kingdom intelligence services via interception powers exercised pursuant to the Regulation of Investigatory Powers Act 2000 (“RIPA”).
2. The surveillance programmes complained about.
The applicants’ concern was triggered by media coverage following the leak of information by Edward Snowden, a former systems administrator with the United States National Security Agency (“NSA”). According to the applicants, TEMPORA is a means by which the Government Communications Headquarters (“GCHQ”) can access electronic traffic passing along fibre-optic cables running between the United Kingdom and North America. The data collected include both internet and telephone communications. GCHQ is able to access not only metadata but also the content of emails, Facebook entries and website histories. The TEMPORA programme is authorised by certificates issued under section 8(4) of RIPA. The applicants allege that United States agencies have been given extensive access to TEMPORA information.
According to media reports another United Kingdom programme for mass data interception is known as Global Telecoms Exploitation. By 2012 GCHQ was handling 600 million “telephone events” each day, had tapped over 200 fibre-optic cables and was able to process data from at least 46 of them at any time.
The media has also reported that GCHQ has been involved in the mass interception of images and other data from online conversations on the internet. The documents indicate that over 1.8 million online images were intercepted in one six month period in 2008 and that the programme was in existence until at least 2012. Information gathered on the system has been exploited using the NSA’s “Xkeyscore” programme and image recognition software. It is thought that bulk searches of the data gathered were limited to metadata, but that the interception, storage and collation of the data has been indiscriminate.
For the applicants, the collection of metadata is of equally grave concern as the interception of communication content with regards to the risk posed to journalistic confidentiality and freedom of expression. Sophisticated analysis of metadata is capable of identifying patterns of networks, sources, lines of enquiry and materials that may be of interest to the security services.
Finally, the applicants refer to the NSA programme known as “PRISM”, to which GCHQ has reportedly had access since at least June 2010 and which it has used to generate intelligence reports (197 reports in 2012). PRISM allows access to a wide range of internet communication content (such as emails, chat, video, images, documents, links and other files) and metadata (information permitting the identification and location of internet users), from United States corporations including some of the largest internet service providers such as Microsoft, Google, Yahoo, Apple, Facebook, YouTube and Skype. A substantial amount of global data passes through the servers of these American companies, including possibly emails sent by the applicants in London to their international contacts. Alongside PRISM, the applicants allege that the NSA utilises a programme known as “UPSTREAM”, which provides access to nearly all the traffic passing through fibre optic cables owned by United States communication service providers. Together, these programmes provide very broad access to the communications content and metadata of non-United States citizens and allow for this material to be collected, stored and searched using keywords.
B. Relevant domestic law
The relevant domestic law and practice was set out in the statement of facts prepared in Big Brother Watch v. the United Kingdom, no. 58170/13.
COMPLAINTS
The applicants complain that the statutory regime in relation to the interception of external communications and metadata is incompatible with Articles 8 and 10 of the Convention. They allege that they are very likely to have been the subjects of generic surveillance by GCHQ and/or the United Kingdom security services who may have been in receipt of foreign intercept material relating to their electronic communications, giving rise to an interference with their rights under Articles 8 and 10 of the Convention. They contend that these interferences are neither “in accordance with the law” nor “prescribed by law” and therefore amount to a violation, for the following reasons. They allege that the deficiencies and unlawfulness of the conduct of the United Kingdom’s security services and of the applicable regulatory framework has impacted upon their ability to undertake their work of investigative journalism without fear for the security of their communications and that the ultimate risk posed is in regards to the public watchdog role of the press. They complain that the blanket interception, storage and exploitation of communication and metadata amount to a disproportionate interference with journalistic freedom of expression.
QUESTIONS TO THE PARTIES
1. Can the applicants claim to be victims of violations of their rights under Articles 8 and 10?
2. Have the applicants done all that is required of them to exhaust domestic remedies? In particular, (a) had the applicants raised their Convention complaints before the Investigatory Powers Tribunal, could the Tribunal have made a declaration of incompatibility under section 4 of the Human Rights Act 1998; and, if so, (b) has the practice of giving effect to the national courts’ declarations of incompatibility by amendment of legislation become sufficiently certain that the remedy under Section 4 of the Human Rights Act 1998 should be regarded by the Court as an effective remedy which should be exhausted before bringing a complaint of this type before the Court (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 43-44, ECHR 2008)?
3. In the event that the application is not inadmissible on grounds of non‑exhaustion of domestic remedies, are the acts of the United Kingdom intelligence services in relation to:
(a) the soliciting, receipt, search, analysis, dissemination, storage and destruction of interception data in respect of “external communications”, in particular with regard to their impact on journalism and newsgathering organisations and their privileged information and communications;
(b) the soliciting, receipt, search, analysis, dissemination, storage and destruction of interception data by the United Kingdom in respect of “meta data”, in particular with regard to their impact on journalism and newsgathering organisations and their privileged information and communications;
“in accordance with the law” and “necessary in a democratic society” within the meaning of Article 8 of the Convention, with reference to the principles set out in Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI; Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008 and Iordachi and Others v. Moldova, no. 25198/02, 10 February 2009?
4. In the event that the application is not inadmissible on grounds of non‑exhaustion of domestic remedies, are the acts of the United Kingdom intelligence services in relation to:
(a) the soliciting, receipt, search, analysis, dissemination, storage and destruction of interception data in respect of “external communications”, in particular with regard to their impact on journalism and newsgathering organisations and their privileged information and communications;
(b) the soliciting, receipt, search, analysis, dissemination, storage and destruction of interception data by the United Kingdom in respect of “meta data”, in particular with regard to their impact on journalism and newsgathering organisations and their privileged information and communications;
“prescribed by law”, and “necessary in a democratic society” in the pursuit of a legitimate aim, within the meaning of Article 10 of the Convention reference to the principles set out in Nordisk Film & TV A/S v. Denmark, no. 40485/02, 8 December 2005; Financial Times Ltd and Others v. the United Kingdom, no. 821/03, 15 December 2009; Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, 22 November 2012; Nagla v. Latvia, no. 73469/10, 16 July 2013?
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