UK intelligence services snooping on lawyers/clients over last 10 years declared unlawful

Inside GCHQ

For some weeks UndercoverInfo has argued (see links below this paragraph) that snooping on lawyers and their clients by UK intelligence and security services was unlawful and that legal cases against the Government or one of its arms, either within the British legal system or within the European Court of Human Rights, could be raised. Now – today – thanks to the determined efforts of solicitors Leigh Day and the organisation Reprieve (as well as excellent coverage by Iain Cobain of the Guardian) in a case involving Libyan dissidents, the Government has been forced to admit that snooping by the intelligence and security services on lawyers and their clients over the last decade (if not longer) was indeed unlawful. Details below, plus an update on related legal cases (and an Appendix listing all current legal challenges to UK surveillance).

(See previous UndercoverInfo articles on this:

The legal challenge by Reprieve on behalf of Libyans Abdel Hakim Belhaj and Sami al-Saadi – whose cases we reported on extensively (see here and here) – was scheduled to be heard next month by the Investigatory Powers Tribunal (IPT).(See also item 4 in Appendix at end of article.)

Today’s admission by the UK Government should also be seen in the context of other challenges against snooping (see Other Infringements section, below, as well as longer list in the Appendix at end of article). Notably, earlier this month Privacy International, Bytes for All, Liberty, and Amnesty International forced the IPT to rule that GCHQ had acted unlawfully in regard to its collusion with the NSA in the mass snooping of the UK populace.

Today the Government issued the following statement (in relation to snooping on journalists and their clients): “The concession the government has made today relates to the agencies’ policies and procedures governing the handling of legally privileged communications and whether they are compatible with the European convention on human rights. In view of recent IPT judgements, we acknowledge that the policies adopted since [January] 2010 have not fully met the requirements of the ECHR, specifically article 8 [right to privacy]. This includes a requirement that safeguards are made sufficiently public.”

Rosa Curling from Leigh Day said: “The government has finally admitted, today, that it has been unlawfully snooping on client-lawyer correspondence for over five years. “We first raised our concerns with them about this issue in 2013. It is only today, a few weeks before our client’s hearing is due to start, that they have finally admitted their policies and procedures are unlawful. Lawyer-client confidentiality is one of the key foundations of a fair trial and the basis of our legal system.”

Cori Crider, a director at Reprieve, commented [that the practice of snooping on lawyers and their clients] “has endangered the fundamental British right to a fair trial. For too long the security services have been allowed to snoop on those bringing cases against them when they speak to their lawyers. In doing so they have violated a right that is centuries old in British common law. Today they have finally admitted they have been acting unlawfully for years.”

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 alleged they were subjected to extraordinary rendition and torture in a joint British-American operation that took place in 2004.)

Other infringements

The latest admission by the Government that the intelligence and security services have acted unlawfully now throws up the question as to whether we can now see a class action by lawyers or their professional bodies against the UK intelligence and security services? There is also, of course, the unlawful or otherwise matter of snooping on journalists (a legal challenge is currently underway) and other professionals (e.g. doctors).

The Government assumes that by releasing a draft code of practice (a link to the document is found at the end of this article) 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. The code reveals that the intelligence and security services intend 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. These practices are referred to as ‘equipment interference’. Furthermore the draft states that the security services will ‘self authorise’ surveillance operations. Privacy International has indicated it will be raising a legal challenge to this code. PI 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.”

The Bureau of Investigative Journalism is also 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 Draft code section below, as well as section 11 in the Appendix at end of article) 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. A report by the Interception of Communications Commissioner 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.

Meanwhile, two days ago, Privacy International has set up an online facility for people worried they may have been monitored by GCHQ or its sister organisations. Already several thousand people have made use of the facility. Again, it would be interesting to see if a class action comes out of this (with the aim of forcing the UK intelligence and security services and police to prove they have not, unlawfully, monitored these named individuals and if they cannot prove this to provide compensation).

Draft code

In December last year the Government published a draft code on the interception of communications, though two months later it became clear to the Government that it had not fully covered itself legally and so published two additional draft codes. These codes included sections on the monitoring snooping) of lawyer/client communications. They refer to such snooping as ‘equipment interference’ in relation to ‘privileged and confidential information’. Here are links to the relevant sections of the two draft codes published in February…

In relation to the Regulation of Investigatory Powers Act (RIPA), 2000… see Section 3 of the Home Office Draft_Equipment_Interference_Code_of_Practice (draft, February 2015) and Section 4.4 – 4.18 of the Home Office Draft_Interception_of_Communications_Code_of_Practice (draft, February 2015).

Appendix

(The following is courtesy of The Bureau of Investigative Journalism.)

Last autumn, the Bureau launched a legal challenge in the European Court of Human Rights (ECHR) to the UK government’s surveillance practices. The case argues that bulk collection of communications data using methods such as internet cable tapping, which were exposed by the US National Security Agency whistleblower Edward Snowden, breaches human rights law.

Storage of meta-data (which details who is contacting whom and when, but not the content of the message) by the government makes it harder for journalists to guarantee their sources’ confidentiality.

Listed below are some of the other challenges to government surveillance brought by organisations and individuals currently going through the British and European courts.

1. Green politicians Baroness Jenny Jones and MP Caroline Lucas

Court: Investigatory Powers Tribunal (IPT)

Case Filed: May 2014

Basis of challenge: The UK’s practice of sucking communications data out of internet cables in bulk through a programme known as Tempora, breaches the “Wilson doctrine” that guarantees MPs’ communications are not spied upon. The claimants also allege that the practice breaches Article 8 and 10 of the European Convention on Human Rights (ECHR).

This case and that of George Galloway (below) were put on hold until the Liberty case (see case no. 5 below) which challenged the legality of the Prism and Tempora programmes had completed. Lawyers in the Jones, Lucas and Galloway cases are now working on a response to the Liberty judgment.

Read more about the case here.

2. Respect MP George Galloway

Court: Investigatory Powers Tribunal

Case Filed: October 2014

Basis of challenge: The UK’s practice of sucking communications data out of internet cables in bulk, a programme known as Tempora, breaches the “Wilson doctrine” that guarantees MPs’ communications are not spied upon. The claimant also alleges that the practice breaches Article 8 and 10 of the ECHR.

Galloway’s lawyer is currently putting together a response to Liberty judgment.

Read more about the case here.

3. Tom Newton Dunn/News UK

Court: Investigatory Powers Tribunal

Case Filed: October 2014

Basis of challenge: Seizure of a Sun journalist’s phone records by the Metropolitan Police breached Article 10 of the ECHR.

The Metropolitan Police ordered Vodafone to hand over Newton Dunn’s phone records as part of an investigation into the “Plebgate saga”, which centred on former Tory chief whip Andrew Mitchell’s spat with police.

Read more about the case here.

4. Abdel-Habden Belhaj and seven others

Court: IPT, civil and criminal courts

Case Filed: September 2013 (IPT)

Basis of challenge: Alleged breaches of Articles 6, 8 and 14 of the ECHR arising from interception of the claimants’ legally privileged communications.

Assisted by NGO Reprieve, the claimants are suing in the civil courts for damages arising from the UK government’s involvement in their kidnapping and rendition to Libya, and believe that the security services may have intercepted their conversations with lawyers about the case.

At an IPT hearing in November 2014 the government released summary policy documents showing that the intelligence agencies treat legally privileged materials like any other form of intelligence. The documents also showed that there is nothing to stop the involvement in civil litigation of security service lawyers who have previously viewed relevant privileged material.

The next hearing is expected in spring 2015.

A month before the hearing, in October 2014, the Court of Appeal had ruled that the civil case could go ahead. The government, which is appealing the decision, had argued that the lawsuit should be thrown out on the basis of technicalities of international law. The government’s appeal case is expected to be heard in the Supreme Court in summer 2015.

The claimants also lodged a criminal complaint back in November 2011; this case is now being considered by the Crown Prosecution Service.

Read more about the cases here.

5. Liberty, Amnesty International, Privacy International, American Civil Liberties Union and Bytes for All

Court: IPT, European Court of Human Rights

Case Filed: July 2013

Basis of challenge: The Tempora and Prism mass surveillance programmes breach Articles 8 and 10 of the ECHR.

Current position: The tribunal ruled on December 5 2014 that the legal framework around the government’s surveillance programmes does not breach human rights law. It will now go to consider whether the NGOs’ communications were intercepted.

The claimants now plan to take the case to the European Court of Human Rights.

They have also filed a separate IPT application following the December 5 ruling. The IPT judgment stated that as the UK government had released some information on its surveillance policies it had complied with human rights obligations on transparency. The court left the question of whether the government had been compliant prior to this disclosure undecided.

The claimants then asked the IPT to confirm that by failing to release these documents sooner, the government breached the law. The IPT did so in February.

Read more about the case here.

6. Privacy International, Riseup (US), GreenNet (UK), Greenhost (Netherlands), Mango (Zimbabwe), Jinbonet (Korea), May First/People Link (US), and the Chaos Computer Club (Germany)

Court: Investigatory Powers Tribunal

Case Filed: July 2014

Basis of challenge: Government hacking of internet service providers’ infrastructure and surveillance of their users is unlawful.

1) By interfering with network assets and computers belonging to the network providers, GCHQ has contravened the UK Computer Misuse Act and Article 1 of the First Additional Protocol (A1AP) of the ECHR, which guarantees the individual’s peaceful enjoyment of their possessions.

2) Conducting surveillance of the network providers’ employees is in contravention of Article 8 and 10 of the ECHR.

3) Surveillance of the network providers’ users that is made possible by exploitation of their internet infrastructure, is in contravention of Arts. 8 and 10 ECHR.

4) By diluting the network providers’ goodwill and relationship with their users, GCHQ has contravened A1AP of the ECHR.

Read more about the case here.

7. Privacy International

Court: Investigatory Powers Tribunal

Case Filed: May 2014

Basis of challenge: GCHQ hacking techniques, including development of programs that remotely hijack computers’ cameras and microphones without the user’s consent, are illegal.

1) Any GCHQ hacking that impairs the operation of a computer – for instance, by leaving it vulnerable to future exploitation — is unlawful under the Computer Misuse Act;

2) Hacking breaches Articles 8 and 10 of the ECHR.

Read more about the case here.

Tom Watson MP and David Davis MP

Court: Civil courts

Case Filed: 2014

The MPs were given permission in December 2014 to launch a judicial review of the Data Retention and Investigatory Powers Act (Dripa).

Basis of challenge: Dripa is not compatible with Article 8 of the ECHR.

Read more about the case here.

9. Big Brother Watch, English Pen, Open Rights Group, Constanze Kurz v UK

Court: European Court of Human Rights

Case Filed: September 2013

Basis of challenge: The applicants allege that they are likely to have been the subject of generic surveillance by GCHQ. GCHQ may also have been in receipt of foreign intercept material relating to the claimants’ electronic communications. Big Brother Watch and the other claimants argue this breaches their rights under Article 8 of the ECHR.

Specifically, they are arguing that:

1) There is no domestic law governing receipt of information from foreign intelligence agencies and the process for handling, storing and disposing of this data once it has been received;

2) The UK law that is meant to stop the government abusing its powers to directly intercept communications and monitor them when one party is outside the UK, is inadequate;

3) Mass interception of external communications transmitted by transatlantic fibre-optic cables is a disproportionate breach of privacy.

The case was prioritised by the court, then stayed pending completion of the Amnesty/Liberty case in the IPT (case no. 5).

Read more about the case here.

10. Privacy International v UK

Court: ECHR

Case Filed: September 2014

Basis of challenge: The blanket exemption given to the security agencies by the Freedom of Information Act request breaches Article 10 of the ECHR in that it interferes with citizens’ right to access information.

Privacy’s FOI request for information including menus and price lists of the GCHQ canteen as well as a copy of the intelligence-sharing agreement between the UK and its “Five Eyes” partners was refused.

Read more about the case here.

11. Bureau of Investigative Journalism and Alice Ross v UK

Court: ECHR

Case Filed: September 2014

Basis of challenge: UK law is incompatible with Articles 8 and 10 of the ECHR, which give journalists the right to keep sources confidential from police and others.

The Bureau and journalist Alice Ross argue that:

1) UK law in relation to the government’s gathering and handling of directly intercepted data where one party is outside the UK does not safeguard journalists’ right to protect their sources.

2) UK law in relation to the government’s gathering and handling of meta data (details of the parties communicating, but not what they said) similarly fails to protect journalists’ privileged communications.

The case has been prioritised by the European Court.

Read more about the case here.

12. Jules Mattsson and five others v Commissioner of the Metropolitan Police and the Home Secretary

Court: Civil courts

Case Filed: November 2014

Basis of challenge: The journalists say that police surveillance of their activities and retention of data on a database of “domestic extremists” was unlawful.

The case has been stayed until the outcome of the Catt case (case no. 13 below).

Read more about the case here.

13. John Catt v Commissioner of the Metropolitan Police

Court: Civil courts

Case Filed: 2011

Basis of challenge: Brighton pensioner Catt argues that the police’s surveillance of his attendance at peace protests and retention of this data on a database of “domestic extremists” was unlawful. In 2013 the Court of Appeal ruled that surveillance of the 89-year old, who has no criminal record, had breached his right to privacy, a decision that was appealed by the police.

A decision by the Supreme Court is expected imminently following a hearing in December 2014.

Read more about the case here.

Advertisements
This entry was posted in Government, Intelligence, no category, Surveillance and tagged , , . Bookmark the permalink.

4 Responses to UK intelligence services snooping on lawyers/clients over last 10 years declared unlawful

  1. Pingback: GCHQ and partners: “It’s a fair cop, Guv’, but stuff the law, we’re immune” (or are they…?) | UndercoverInfo

  2. Pingback: GCHQ mass surveillance threatened in ECHR legal case | UndercoverInfo

  3. Pingback: Why police ‘investigation’ of journalists involved in Snowden disclosures is flawed | UndercoverInfo

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s