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Law Research Seminar Series - Above and Below The Waterline: Law, Mass Media and Mass Surveillance

Venue: Birkbeck 30 Russell Square

Above and Below The Waterline: Law, Mass Media and Mass Surveillance

Speaker: Bernard Keenan, School of Law, Birkbeck

In September the European Court of Human Rights issued judgment in the case of Big Brother Watch & Others v the United Kingdom. The case assesses the compatibility of bulk interception of communication from deep-sea fibre optic cables, as revealed by Edward Snowden, with the European Convention on Human Rights.

Bulk interception of communication was considered domestically by the Investigatory Powers Tribunal (IPT), a semi-secret court that assesses complaints concerning unlawful state surveillance in Britain. A key question in assessing whether or not a secret surveillance regime is lawful under the ECHR concerns the extent to which the rules governing the regime are publicly accessible, so that the nature of the powers and their reasons for deployment might be ‘foreseeable’ to the citizen. The IPT found in 2015 that the regime had not been sufficiently foreseeable prior to being challenged, but that the decision of the IPT in the case contained sufficient extra information as to remedy this prior unlawfulness. Thus the decision assessing the legality of the framework had the paradoxical effect of correcting its deficiencies.

The recursive effect by which the Tribunal refers to itself as a source of information that can transform uncertainty into certainty; or (in information-theoretical terms) variety into redundancy, has been approved by Strasbourg and labelled as an ‘elucidatory’ function.

The elucidatory function is novel for a judicial body, and this paper suggests it can be understood through the dynamics of the mass media as described by Niklas Luhmann. This particular area of law works as a dynamic system that transforms surprising information into unsurprising (or no longer surprising) general knowledge. In this way, the Tribunal recodes the function of the legal system in relation to public law: no longer does it merely address the question of legality/illegality, it also mediates the relationship between secrecy and publicity in order to ensure that any illegality is converted into legality.

Law Research Seminars are held on Wednesdays at lunchtime. The seminars are free and open to the public, and a light lunch is provided. For more information please contact

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