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

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 © Bird & Bird LLP 2014

Human Rights Interferences "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 © Bird & Bird LLP 2014

Human Rights Interferences “… 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 © Bird & Bird LLP 2014

Secrecy and quality of law are natural enemies Accessibility Secrecy and quality of law are natural enemies © Bird & Bird LLP 2014

Secret law is not law © Bird & Bird LLP 2014

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 © Bird & Bird LLP 2014

A real issue 1984 Malone v UK Pre-1985 1997 Halford v UK IOCA 1985 Phone taps warranted by SoS Not "in accordance with the law" Pre-1985 No statutory framework 1997 Halford v UK Unwarranted tap of office phone Not "in accordance with the law" IOCA 1985 Public telecommunications 2007 Copland v UK Office e-mail, internet and phone use Not "in accordance with the law" 2008 Liberty v UK External warrants - filtering Not "in accordance with the law" Human Rights Act 1998 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 2010 Kennedy v UK Internal warrants scheme "in accordance with the law" 2014 TEMPORA, PRISM "in accordance with the law?" © Bird & Bird LLP 2014

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?) © Bird & Bird LLP 2014

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 © Bird & Bird LLP 2014

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 “ … 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]). “[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." © Bird & Bird LLP 2014

But it’s not just Snowden

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? © Bird & Bird LLP 2014

… and watch out for the essence of the right © Bird & Bird LLP 2014

“… any limitation to the right to privacy must not render the essence of the right meaningless” High Commissioner’s Report June 2014 © Bird & Bird LLP 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) © Bird & Bird LLP 2014

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” © Bird & Bird LLP 2014

Graham Smith graham.smith@twobirds.com @cyberleagle Thank you 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