The privacy groups had initially intended to bring action within the UK court system, and on 3 July informed the UK government of their intention to seek a judicial review. At issue is the alleged GCHQ mass surveillance program known as Tempora that taps the fiber cables between the UK and the US, and GCHQ's participation in the NSA's Prism program.
Nick Pickles, director of Big Brother Watch, explains: “The laws governing how internet data is accessed were written when barely anyone had broadband access and were intended to cover old fashioned copper telephone lines. Parliament did not envisage or intend those laws to permit scooping up details of every communication we send, including content, so it’s absolutely right that GCHQ is held accountable in the courts for its actions.”
The government, however, refused permission for the judicial review and said that the groups should instead complain to the Investigatory Powers Tribunal (IPT) – "a secretive body," says the CCC, "that hears complaints about the intelligence agencies and from which there is no appeal to the courts."
If this route had been taken, there would be no public examination of the issues and no possible remedy from the IPT. The European Court, according to CCC, "has previously held that the IPT does not provide an effective remedy and that it will hear complaints directly. The applicants have therefore pursued their legal challenge in the European Court of Human Rights."
The inclusion of Constanze Kurz, a German citizen, highlights that the complaint is seeking a European rather than simply British resolution. “I want to know, as a European Citizen," she says, "whether the human rights convention protects me and others like me across Europe from mass surveillance. This is a cross-border issue, yet the British laws offer virtually no protection to persons outside the UK from surveillance by the UK and US Governments.”
"The applicants seek," says the court document, "declarations that their rights under Article 8 of the Convention have been violated and that UK law is not in conformity with the Convention in the respects set out herein;" and costs. “We are asking the court to declare that unrestrained surveillance of much of Europe’s internet communications by the UK Government, and the outdated regulatory system that has permitted this, breach our rights to privacy. This is not something the secret investigatory powers tribunal can do," explains Daniel Carey, representing the applicants.