Right to Privacy in the Digital Age-final

Right to Privacy in the Digital Age

Graham SmithData Protection and Privacy Commissioners’ Conference

Bird & Bird LLP16 October 2014

Legitimate aim, necessity and proportionality are important…

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but don’t forget quality of law

Human Rights Interferences


Article 8 ECHR – privacy protectionNo interference by a public authority except such as is:● in accordance with the law and ● is necessary in a democratic society ● in the interests of

• national security, • public safety • or the economic well-being of the country, • for the prevention of disorder or crime, • for the protection of health or morals, • or for the protection of the rights and freedoms of others

● Proportionality

"In many countries … vague and broadly conceived legal provisions are being invoked to legitimize and

sanction the use of seriously intrusive techniques.

Without explicit laws authorizing such technologies and techniques, and defining the scope of their use,

individuals are not able to foresee – or even know about – their

application.“Special Rapporteur, 17 April 2013



“… the law must be sufficiently accessible, clear and precise so that an individual may look to the

law and ascertain who is authorized to conduct data

surveillance and under what circumstances.”


High Commissioner’s Report June 2014


Secrecy and quality of law are natural enemies


Accessibility

Secret law is not law



ECHR “In accordance with the law”Existence and quality of law● Existence: some basis in domestic law (statute or

common law)● Quality of law – compatible with rule of law

• Accessibility and foreseeability of consequences- Publication, detail and precision

• Protection against arbitrary interference, having regard to the legitimate aim of the measure

• For surveillance, a law which confers a discretion must indicate with sufficient clarity the scope of that discretion and the manner of its exercise- Contrary to rule of law for executive discretion to be

expressed in terms of an unfettered power• Laws, regulations, manuals and instructions (if

sufficiently publicised) Liberty v UK• Independent supervision

Human Rights Act 1998

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© Bird & Bird LLP 2014

A real issuePre-1985No statutory framework

1984 Malone v UKPhone taps warranted by SoSNot "in accordance with the law"

IOCA 1985Public telecommunications

1997 Halford v UKUnwarranted tap of office phoneNot "in accordance with the law"

RIPA 2000Public and private networksWarranted and other interceptionUncertified and certified warrantsOutside and within UKCivil and criminal remediesCodes of Practice

2014TEMPORA, PRISM"in accordance with the law?"

2007 Copland v UKOffice e-mail, internet and phone useNot "in accordance with the law"2008 Liberty v UKExternal warrants - filteringNot "in accordance with the law"

2010 Kennedy v UKInternal warrants scheme"in accordance with the law"

Legal Challenges Landscape


PRISM – sharing in accordance with law?Privacy International (UK Investigatory Powers Tribunal); Big Brother Watch (Strasbourg)● No legal regime with

• Sufficiently clear and detailed rules• Sufficient safeguards

● Secret and unpublished rules (if any)● Insufficient indication of scope of discretion● Oversight regime

● US FISA too broad/insufficient safeguards

● NL: Citizens v Plasterk (metadata v content, Art 8 applicability to sharing?)


TEMPORA – in accordance with law?Privacy International (UK Investigatory Powers Tribunal); Big Brother Watch (Strasbourg), Bureau of Investigative Journalism (Strasbourg)RIPA external warrants provisions● Insufficiently specific or clear authorisation● Insufficient public safeguards● Lack of judicial or independent authority authorisation● Oversight regime

● Automated versus sentient?● Richer metadata?● Secret legal interpretations?● Professional/journalistic privilege

● DE: Harting - G10


TEMPORA – in accordance with law?Privacy International (UK Investigatory Powers Tribunal); Big Brother Watch (Strasbourg), Bureau of Investigative Journalism (Strasbourg)RIPA external warrants provisions● Insufficiently specific or clear authorisation● Insufficient public safeguards● Lack of judicial or independent authority authorisation● Oversight regime

● Automated versus sentient?● Richer metadata?● Secret legal interpretations?● Professional/journalistic privilege

● DE: Harting - G10

“[UK gov’t] … accept that the interception under a s.8(4) warrant may be regarded as giving rise to a technical interference [with ECHR Art 8 rights] even if that communication is not and/or cannot be read, looked at or listened to by any person."

“ … the mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This threat necessarily … amounts in itself to an interference with the exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against them” (Weber [78]).

But it’s not just Snowden


Mandatory comms data retentionMember State responses to Digital Rights Ireland● Many never implemented in the first place, or were

invalidated by national constitutional courts e.g. GermanyPost CJEU● Slovakia: Constitutional Court temporary invalidity

declaration on retention aspects● Romania: Constitutional Court declared unconstitutional● Sweden: 4 operators ceased retention; regulator initially

decided not to pursue; changed following government committee; challenge by CSP

● UK: substantially enacted by Data Retention and Investigatory Powers Act• Threatened legal challenge by two Members of

Parliament• Professional/journalistic privilege > change in law?

… and watch out for the essence of the right


“… any limitation to the right to privacy must not render the

essence of the right meaningless”


High Commissioner’s Report June 2014


EU Charter of Rights v ECHRArticle 52 Charter Article 8 ECHRLimitations permissible if Interference permissible if

1. Provided for by law In accordance with the law2. Respect the essence of the

right and freedom

3. Necessary Necessary in a democratic society4. And genuinely meet recognised

general interest objectivesin the interests of national security, public safety or the economic well-being of the country,

for the prevention of disorder or crime,

for the protection of health or morals,Or the need to protect rights and freedoms of others

or for the protection of the rights and freedoms of others.

5. Proportionate Proportionate (caselaw)


Digital Rights Ireland (CJEU)

EU Data Retention Directive - mandatory retention of communications data by service providersEssence of right adversely affected? No.“does not permit acquisition of knowledge of the content of the electronic communications

as such”

Graham [email protected]

@cyberleagleBird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses.

Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number OC340318 and is authorised and regulated by the Solicitors Regulation Authority. Its registered office and principal place of business is at 15 Fetter Lane, London EC4A 1JP. A

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Thank you

Documents

Right to Privacy in the Digital Age-final