The UK government lost a court case on electronic surveillance the other day. I hope that it will be defeated in at least one other case to come.
Faithful readers of this blog will know that when the Edward Snowden revelations changed our understanding the way governments watch how we communicate, the defenders of dragnet information gathering rested on the argument that the snoopers weren’t listening to the calls or reading the content of the emails. They were only able to see who had phone, emailed or texted who, when and for how long. Metadata, so called.
As time went on, this “defence” looked less and less reassuring. It looked especially alarming to journalists, since this harvesting equips governments with the ability to find out journalists’ sources. The direction and frequency of contacts will usually be enough to spot the source of a leak.
More than that: it can get someone killed. I had missed this extraordinary debate involving General Michael Hayden, a retired head of America’s NSA, in which he cheerfully acknowledges that “we kill people based on metadata”, quickly adding that the government does not act that way inside the US. There’s a very good commentary on what else Hayden says here by David Cole.
A case, pushed by the Bureau of Investigative Journalism (declaration: I’m a trustee), went to the European Court of Human Rights in an attempt to see if the court would agree that the indicriminate collection of metadata is – by threatening the secrecy of sources – a breach of Article 10 of the Convention on Human Rights which outlines the right to free expression.
One small piece of good news: the court, which often takes several years to process a case, recently announced that this case would be given high priority. A very unusual move and one that means that this important question might be answered this year.