Right to Privacy in the Digital Age-final

Right to Privacy in the
Digital Age
Graham Smith
Data Protection and Privacy
Commissioners’ Conference
Bird & Bird LLP
16 October 2014

Legitimate aim, necessity and
proportionality are important…
Page 2
© Bird & Bird LLP 2014
but don’t forget quality of law
Human Rights Interferences

Article 8 ECHR – privacy protection
No 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
Page 4

“… 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.”
Page 5
High Commissioner’s Report June 2014

Secrecy and quality of law
are natural enemies
Page 6
Accessibility

Secret law is not law
Page 7

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
Page 9
A real issue
Pre-1985
No statutory framework
1984 Malone v UK
Phone taps warranted by SoS
Not "in accordance with the law"
IOCA 1985
Public telecommunications
1997 Halford v UK
Unwarranted tap of office phone
RIPA 2000
Public and private networks
Warranted and other interception
Uncertified and certified warrants
Outside and within UK
Civil and criminal remedies
Codes of Practice
2014
TEMPORA, PRISM
"in accordance with the law?"
2007 Copland v UK
Office e-mail, internet and phone use
2008 Liberty v UK
External warrants - filtering
2010 Kennedy v UK
Internal warrants scheme
"in accordance with the law"

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
● 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
● 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]).

Mandatory comms data retention
Member State responses to Digital Rights Ireland
● Many never implemented in the first place, or were invalidated by
national constitutional courts e.g. Germany
Post 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
Page 16

“… any limitation to the right to privacy
must not render the essence of the
right meaningless”
Page 17
High Commissioner’s Report June 2014

EU Charter of Rights v ECHR
Article 52 Charter Article 8 ECHR
Limitations permissible if Interference permissible if
1. Provided for by law In accordance with the law
2. Respect the essence of the right
and freedom
3. Necessary Necessary in a democratic society
4. And genuinely meet recognised
general interest objectives
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 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 providers
Essence of right adversely affected? No.
“does not permit acquisition of knowledge of the
content of the electronic communications as such”

Graham Smith
graham.smith@twobirds.com
@cyberleagle
Bird & 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 list of members of Bird & Bird LLP and
of any non-members who are designated as partners, and of their respective professional qualifications, is open to inspection at that address.
twobirds.com
Thank you

Right to Privacy in the Digital Age-final

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