The recent IPT (Investigatory Powers Tribunal) ruling that the mass surveillance practices of UK intelligence services – in particular GCHQ – was unlawful has huge implications and could lead to innumerable class actions or litigation by individuals. Legal challenges are already underway on behalf of journalists. The IPT ruling appeared to refer to the use of technologies covering the last seven years, but another interpretation is that the illegality of mass surveillance could go way back beyond that period. The implications are only beginning to sink in…
First, a recap…
In December 2014 the IPT ruled that GCHQ practices – specifically Tempora – were lawful. However, Carly Nyst, Legal Director at Privacy International commented: “The proceedings forced the Government to disclose secret policies governing how foreign intelligence agencies, including the NSA, share information with GCHQ. Privacy International believes that the fact that these secret policies are only now public because we have forced their disclosure in court means that such rules could never make the actions of GCHQ in accordance with the law. The IPT must find that secret law is not law, and should at the very least rule that all UK access to PRISM was unlawful prior to today.”
Then, just over a week ago the Investigatory Powers Tribunal ruled that British intelligence services acted unlawfully in accessing millions of people’s personal communications collected by the NSA. The Tribunal stated: “The regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities … contravened Articles 8 or 10” of the European convention on human rights.” The Tribunal declared that intelligence sharing between the United States and the United Kingdom was unlawful prior to December 2014, because the rules governing the UK’s access to the NSA’s PRISM and UPSTREAM programmes were secret. The claimants in the case were Privacy International, Bytes for All, Liberty, and Amnesty International. PRISM and UPSTREAM, which have been in existence for nearly a decade, were made public in June 2013 by NSA whistleblower Edward Snowden.
However, it’s important to note that the Tribunal did not address the use of other technologies – also kept secret. This leaves the door open for further challenges against snooping over a much longer period.
Challenges are also being made by special interest groups – e.g. lawyers and journalists (see below) – or even by individuals, concerned that their privacy has been violated in contravention of the law. The litigation possibilities are endless and could see hundreds of claims for damages, miscarriages of justice, etc.
The Bureau of Investigative Journalism is currently challenging the British government in the European Court of Human Rights in connection with its surveillance activities. The case claims that journalists’ communications are inadequately safeguarded under RIPA (see below) as their sources may be identified from the data collected by the intelligence agencies. Politicians promised new controls in the code, but instead the new draft guidance states that police can continue to secretly view journalists’ phone records provided they give “special consideration” to the “proportionality” of doing so. The Bureau’s case is particularly concerned with the routine data collection and analysis of this material by GCHQ. Also, a report by the Interception of Communications Commissioner (see also below) found that the police had failed to give “due consideration” to Article 10 rights when applying for warrants to intercept journalists’ communications. New Snowden documents reported by the Guardian revealed that GCHQ had collected emails to and from journalists working for some of the US and UK’s largest media organisations, including the BBC, Reuters, the Guardian, the New York Times, Le Monde, the Sun, NBC and the Washington Post.
A 96 page document was published last November confirming how the UK mass surveillance agency has been monitoring the correspondence, email, phone calls and other communications between lawyers and their clients for years. According to the document in at least one case legally privileged material that was covertly intercepted by a British agency may have been used to the government’s advantage in legal cases. One passage notes that security service MI5 identified an instance in which there was potential for “tainting” a legal case after secretly intercepted privileged material apparently ended up in the hands of its lawyers. (Note: The document was made public as a result of a legal case brought against the British government by Libyan families who allege that they were subjected to extraordinary rendition and torture in a joint British-American operation that took place in 2004.)
Separately, on February 4th, 2015, the Interception of Communication Commissioner’s Office published a report that revealed how 19 police forces in Britain over a three year period made more than 600 applications to uncover 242 confidential sources and 82 journalists (mainly national newspapers). The commissioner’s report stated that the police acted against Article 8 of the European Convention of Human Rights and did not give consideration to journalists’ rights to freedom of expression under article 10 of that convention.
Just how many lawyers and their sources were spied on by the intelligence services is unknown. Until the intelligence services are forced to provide evidence to the contrary it must be assumed that every legal case in the UK was compromised or contaminated by such surveillance.
In response to the recent rulings the Home Office was forced to submit a draft code of practice for comments. This code reveals that GCHQ intends to continue to bypass end-to-end encryption facilities, sweep up the content of computers, listen in to phone calls, track locations and even switch on microphones or cameras on computers. GCHQ refers to these practices as ‘equipment interference’. Furthermore the draft states that the security services will ‘self authorise’ surveillance operations.
However, the Government assumes that by releasing this draft code of practice, GCHQ and other government agencies are provided with the legal authority to continue their up-to-now illegal practices (as declared by the IPT) and expand upon them. Privacy International has already indicated it will be raising a legal challenge to this assumption.
Privacy International commented… “One might ask, therefore, what changed in December 2014 to make the IPT conclude that after that date the US’s sharing of PRISM and UPSTREAM data with the UK was adequately “prescribed by law.” The answer? Not much. Under the Human Rights Act, infringements with the right to privacy have to be both “in accordance with the law” and “necessary and proportionate”. In this ruling, the IPT was considering whether the intelligence sharing agreements were “in accordance with the law”, meaning that there must be a clear, detailed publicly accessible legal framework regulating the use of a power which interferes with privacy… What was publicly disclosed, therefore, is little more than a Tribunal’s summary of secret policies disclosed in a secret hearing, which policies describe only the broadest of restrictions on the receipt of intelligence material by the UK, and remain buried in a 77-page long decision from the IPT, not enshrined in any accessible law or statute. We think that falls far short of what is called for by the “in accordance with law” requirement, and in the coming weeks will be appealing to the European Court of Human Rights to argue our case there, demanding an end to unlawful mass intelligence sharing, and ensuring privacy protections for all.”