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Big data, big bother

Over in the US, fervent debate on the legality of mass surveillance data used in court may have resonance for the UK – with the impact likely to be felt from law-makers to firms and chambers.

Uzbek refugee Jamshid Muhtorov has brought a motion to supress evidence gathered by bulk surveillance collected without a warrant. Bulk surveillance – effectively eavesdropping across all communications channels to scan for evidence – is fast becoming a fighting ground over nothing less than an individual’s constitutional rights under the fourth amendment.

According to US law, bulk surveillance may be carried out under the Foreign Intelligence Surveillance Act (FISA) 2008, which grants power to government to monitor and record phone calls and emails without first seeking a warrant if the evidence is primarily sought against foreign suspects overseas. It is the absence of a warrant which provides ammunition for Muhtorov and his team: the fourth amendment protects against search of property or person without a formal warrant.

As legal tech innovations such as eDiscovery make the scanning of vast sets of data ever more feasible, the appeal of tactics such as mass surveillance is all too evident. The punitive cost of sifting through thousands of hours of recorded conversations or painstakingly scrutinising correspondence is now significantly reduced, both in terms of finance and time.

The debate as to the legality - and indeed ethics – of bulk surveillance tactics has yet to reach our shores, but as Nick Pickles of Big Brother Watch has noted, there are unavoidable implications for our legal landscape. He says, “This debate in Britain may be in its infancy, with secrecy a well-worn habit when it comes to our security agencies, but one thing is clear. If we do not, as the US and other countries now accept is essential, bring our legal framework and oversight mechanisms in line with the expansive surveillance made possible by modern technology, our economy, our privacy and our security will all suffer.”

Pickles brings a particular perspective to the debate – and there are of course other assessments which will query the privileging of rights to privacy above national security imperatives. Lawyers will be watching with interest, and will need to consider the implications for their own practice should mass surveillance in the UK become a subject of contention. At Legastat we will continue to ensure our professional litigation support services match the needs of our clients – including by anticipating and adapting to all the inevitable changes in the legal landscape.

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