On July 13, 2016, Privacy International and Article 19 were granted leave by the European Court of Human Rights to intervene in Breyer and Breyer v Germany, App. No.: 5000/12. The case raises the data retention requirements in s. 111 of the German Federal Telecommunications Act (Telekommunikationsgesetz or TKG) in its 2004 and 2007 versions.

Privacy International is a London based nongovernmental organization established in 1990 and dedicated to defending the right to privacy around the world. Article 19 is an international organization established in 1987 that defends and promotes freedom of expression. It took its name from Article 19 of the Universal Declaration of Human Rights. They have now filed joint written submissions that elaborate upon the importance of anonymity to the rights of privacy and freedom of expression. The brief provides an opportunity to consider the foundational role of anonymity that I have discussed previously on this blog. (See, e.g.: Privacy Is A Human Right dated October 12, 2015; and, Privacy After Paris dated November 28, 2015)

The German law requires telecommunication service providers to store the personal information of all their customers irrespective of whether it is necessary for billing or contractual purposes. The applicants, Patrick and Jonas Breyer, argue that they cannot communicate anonymously by mobile phone because their personal data, as users of pay-as-you-go SIM cards, is stored by their service providers.

The written submissions of the intervenors address (a) background on anonymity and its importance to a democratic society (b) international and domestic legal authorities that advocate for protecting anonymous speech under human rights standards and (c) general data retention obligations and how they interfere with anonymity and the rights of privacy and freedom of expression. The intervenors say this about anonymous speech, at paras. 5-9:

• Anonymity and anonymous speech have played a foundational role in human history. Anonymity is one of the essential tools available to individuals to mitigate or avert unlawful interferences with their rights to privacy and free expression, and it has long been a means by which individuals could freely enjoy their right to impart and receive information free from state control.  As such, anonymity, which has traditionally been linked to the right to privacy and protection of personal data, is also an important safeguard for the exercise of the right to freedom of expression.

• “At its simplest, anonymity is the fact of not being identified and, in this sense, it is part of the ordinary experience of most people on a daily basis, e.g. walking as part of a crowd or standing in a queue of strangers.” As such, “an activity can be anonymous even though it is also public.” That one can be both public and maintain her dignity as secret is the very benefit of anonymity – that is what allows individuals to freely engage in works that critique governments or powerful actors, or expose wrongdoings.

• It is in this context that this Court has emphasized the importance of anonymity as “a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet.” The Supreme Court of the United States has also characterized anonymous speech “as an honourable tradition of advocacy and of dissent” and that it acts as “a shield from the tyranny of the majority.” It has also identified anonymity’s historical significance: “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies, was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers.

• In other words, anonymity has given individuals throughout history a necessary cloak with which to shield themselves from reprisal – reprisal from the state, their fellow countrymen and women, or, increasingly, would-be oppressors located anywhere in the world. These individuals may be whistleblowers, who seek to expose the latest abuse of power by a government agency or private company. They may be dissidents, who seek to expand the channels of governance to include the dispossessed. They may be sources for journalists, who provide the necessary informational inputs to make democracy work. Or they may be everyday people who are not comfortable discussing their trials and tribulations without the layer of protection that anonymity provides. For all of these speakers, anonymity “protects the freedom of individuals to live their lives without unnecessary and undue scrutiny.” If we value anonymity as a tool for an open and diverse conversation in society, we mist also value the anonymity between two persons in a telephone conversation. Investigative journalism, whistleblowers and other individuals that are preparing to make a controversial or government-opposing message public should not just be protected once they are standing in the public eye. Without these anonymous sources, many essential news stories would never be published. “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.”

• But “without effective protection of the right to privacy, the right of individuals to communicate anonymously and without fear of their communications being unlawfully detected cannot be guaranteed.” That is particularly true in the modern world, where people rely on a growing range of both fixed-location and mobile electronic devices which enhance their possibilities to communicate, participate in and manage their everyday lives. While these devices have greatly expanded human experience – they are also capable of collecting and storing data, including personal data such as websites visited, keystrokes that reveal passwords, geographical locations that potentially allow tracking and surveillance of people. This data can reveal sensitive personal information (such as sexual orientation, health, political and religious preferences). The type and amount of personal data collected is increasing exponentially as computing is now ubiquitous with the apogee of smartphones. The large amount of personal and sensitive data collected via these devices can be used or abused by political authorities against the speaker. Consequently, the right to privacy and to communicate anonymously in our digital economy is of the utmost importance to protect from unlawful government surveillance. It is perhaps unsurprising, then, that “[a]nonymity is a deeply held value for many internet users and has contributed to a robust internet sphere.” [Citations omitted]

The court had directed the intervenors not to comment on the facts or merits of the case. But the brief does address important international and domestic legal authorities that have moved towards recognizing anonymity as a right underpinning the rights of privacy and freedom of expression.

At the international level, the Committee of Ministers of the Council of Europe adopted a declaration in 2003 that “member states should respect the will of users of the Internet not to disclose their identity.” And the United Nations Special Rapporteur, David Kaye, has emphasized the interconnectedness between anonymity and the rights of privacy and freedom of expression noting how anonymity counterbalances “unlawful censorship through filtering and other technologies.” (See: Council of Europe, Declaration on freedom of communication on the Internet (2003), at p. 12; and, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (2015), A/HRC/29/32, at para. 16)

National courts of the United States and Canada have also recognized the foundational role of anonymity. It has been held in the United States that “anonymous speech on the Internet, like other types of anonymous speech, enjoys First Amendment protection.” And the Supreme Court of Canada has recognized the importance of anonymity as “the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure.” (See: Awtry v Glassdoor, Inc. US Dist Ct, Case No.: 16-mc-80028-JCS (ND Cal 2016), at p. 33; and, R v Spencer, [2014] 2 SCR 212, at para. 48)

Laws that require telecommunication companies to store the personal data of customers violate anonymity by facilitating surveillance – surveillance that is conducted on a massive scale when personal data is tied to smartphones that are used as primary communication devices. The intervenors summarize their position this way, at para. 25: “The Intervenors do not challenge the well-established principle that surveillance in some form may be necessary in combatting serious crime and genuine threats to national security. But general data retention laws are indiscriminate – they subject all individuals to potential surveillance by forcing companies to store identifying information on all their customers. As such, those laws interfere with the public’s rights of privacy and freedom of expression and must be analyzed under the standards of Articles 8 and 10 – that is, they must be subject to the principles of legality, necessity and proportionality. In turn, that means that the laws must incorporate certain safeguards to minimize the risk of abuse.”

This, then, is a case to follow – not least because the European Court of Human Rights, and its sister Court of Justice of the European Union, stand at the boundary between legitimate intrusion upon an individual’s privacy and unlawful surveillance. Tomaso Falchetta, a legal officer with Privacy International, has asserted that the European courts are at the vanguard for good reason: “…[T]he international human rights framework developed after the Second World War may well be old, but it is not dated. Even on the most technologically advanced (and continuously developing) issues, it has proved to have a certain resilience. By focusing on the individual, by putting the burden on the state (and increasingly on companies) to justify invasions of privacy, by applying strictly the principles of legality, necessity and proportionality, human rights law has been successfully used to challenge over-broad modern communications surveillance laws and practices.” (See: Tomaso Falchetta. A shrinking feeling: Anonymity, Privacy, and Free Expression. Privacy International. September 20, 2016)