GCHQ, via a court action against the UK Government, will soon be in the dock at the European Court of Human Rights, thanks to a number of pro-privacy organisations (see Statement by Privacy International below). The context of this latest court case is a trail of legal cases/judgements that saw the Investigatory Powers Tribunal (IPT) find that British intelligence services acted unlawfully in accessing millions of people’s personal communications collected by the NSA and the UK Government concede that the regime governing the interception, obtaining and use of legally privileged material violated the Human Rights Act.
A. Previous cases/judgements (and related developments) included:
- Last month key findings, conclusions and recommendations of the ISC report: “Privacy and Security:A modern and transparent legal framework” were published. For more on this, click here.
- In February the IPT (Investigatory Powers 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 Investigatory Powers Tribunal also 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.” For more, click here. The UK Government also admitted that its mass surveillance programme using PRISM and Tempura contravened the European Convention on Human Rights.
- Consequently the Government rushed out a draft code of practice in the ludicrous belief that in doing so that would provide immunity to GCHQ and its UK sister organisations, including the police, on past failures. For more on this, click here.
- Also in February a statement was issued by the UK Government 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.” For more on this, click here.
- The Intercept also published a story about how GCHQ and the NSA hacked into the internal computer network of Gemalto, a multinational firm incorporated in the Netherlands that makes the chips used in mobile phones and next-generation credit cards and the largest manufacturer of SIM cards in the world. The spy agencies stole from Gemalto encryption keys used to protect the privacy of cellphone communications across the globe. Among Gemalto’s clients are AT&T, T-Mobile, Verizon, Sprint and some 450 wireless network providers around the world.
- Last November it was shown that GCHQ could be liable to countless legal challenges as a result of a 96 page document (see below) that was released to lawyers 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. The release of the document paves the way for numerous challenges in the UK courts or the European courts in relation to prosecutions going back years.
B. Latest statement by Privacy International:
Privacy International and several other human rights organisations are taking the UK Government to the European Court of Human Rights over its mass surveillance practices, after a judgement last year found that collecting all internet traffic flowing in and out of the UK and bulk intelligence sharing with the United States was legal.
The appeal, filed last week by Privacy International, Bytes for All, Amnesty International, Liberty, and other partners, comes in response to a ruling in December by the UK’s surveillance court, the Investigatory Powers Tribunal, dealing with the industrial-scale spying programmes TEMPORA and PRISM revealed by National Security Agency whistleblower Edward Snowden.
That ruling found that mass surveillance of internet traffic via fibre optic cables going into and out of the UK, known as TEMPORA, and intelligence sharing regime between the US and UK under PRISM was in principle lawful. The tribunal’s decision relied on the fact that, during the course of the case, small selective portions of previously secret policies governing Government’s surveillance activities were made public. The IPT found that because these policies were public, the mass spying programmes were therefore compliant with human rights.
The joint application to the European Court of Human Rights challenges the Tribunal’s December ruling that mass surveillance under RIPA and reliance upon the content of secret policies could in principle comply with Britain’s human rights obligations the European Convention on Human Rights, specifically the rights to privacy and freedom of expression enshrined in Articles 8 and 10. Europe’s highest court on human rights will also be asked to consider whether provisions in RIPA that afford a higher degree of privacy protections to British residents violate Article 14, which outlaws unlawful discrimination.
The action comes in the wake of increasing signs that Government’s legal position is unravelling. On 6 February, the IPT found that British intelligence services acted unlawfully prior to the court’s December ruling in accessing millions of people’s personal communications collected by the NSA. The decision was the first time ever that the IPT, the only UK court empowered to oversee GHCQ, MI5 and MI6, ruled against the intelligence and security services.
On 18 February, in a separate IPT legal challenge involving Reprieve and Amnesty International, the Government conceded that the regime governing the interception, obtaining and use of legally privileged material violates the Human Rights Act.
The existence of TEMPORA has been disclosed by Edward Snowden but the British Government has said it will “neither confirm nor deny” its existence. TEMPORA secretly conducts mass surveillance by tapping fibre optic cables, giving the Government access to huge amounts of data on both innocent citizens and targeted suspects. According to the Guardian, in 2011 “more than 39bn events in a 24-hour period” were recorded producing “larger amounts of metadata collection than the NSA”.
Through PRISM, the NSA has gained access to the data and content handled by some of the world’s largest Internet companies, including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple. While this appeal is pending, GCHQ will retain unfettered access to this material.
The application to the European Court of Human Rights comes after 18 months of litigation between the Government and the applicant NGOs, which exposed significant flaws in UK’s legal regime. This included the disclosure of previously secret “arrangements” allowing Britain’s intelligence services to request or receive access to bulk data from foreign agencies like the NSA without a warrant whenever it would “not be technically feasible” for the government to obtain it themselves. In addition, it was disclosed that the government considers it justifiable to engage in mass surveillance of every Facebook, Twitter, YouTube and Google user in the country, even if there is no suspicion that the user has committed any offence, by secretly redefining Briton’s use of them as “external communications”.
Carly Nyst, Legal Director of Privacy International said:
“Mass surveillance is a violation of our fundamental rights. Intercepting millions of communications every day, and secretly receiving millions more from the the NSA by the back door is neither necessary nor proportionate.
“While the IPT sided with GCHQ and against the rights of millions of people, Europe’s highest human rights court has a strong history of ensuring intelligence agencies are compliant with human rights law. We hope that the Court continues this tradition and GCHQ is finally held accountable for its unfettered spying on the world’s communications.”
Nick Williams, Amnesty International’s Legal Counsel said:
“The UK government’s surveillance practices have been allowed to continue unabated and on an unprecedented scale, with major consequences for people’s privacy and freedom of expression. No-one is above the law and the European Court of Human Rights now has a chance to make that clear.
“This industrial scale mass surveillance makes it increasingly difficult for organisations like Amnesty International to carry out human rights work. It is critical that we are able to seek and receive information of public interest from our confidential sources, free from government intrusion.”
James Welch, Legal Director for Liberty, said:
“It is thanks only to Edward Snowden’s revelations, and the scant disclosures we and the other claimants have been able to prise from the Government, that we know anything whatsoever about what the intelligence services are up to.
“The Tribunal believes that there are sufficient safeguards to protect us from industrial-scale abuse of our privacy. We disagree, and hope the European Court will finally make clear to our security services that they cannot operate in near complete secrecy.”
C. History of other legal cases re UK surveillance:
Here, courtesy of the Bureau for Investigative Journalism, is a list of legal cases submitted over the last two years in relation to UK surveillance. Some are still awaiting a hearing. Updates have been included where judgements have been made.
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.
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.
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.
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.
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 2015. Read more about the case here.
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.
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.
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.
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). The full application is here. Read more about the case here.
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.
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.
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.
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. Note: earlier this month the Supreme Court ruled that the state’s collection of records on citizens’ political activities amounted to an interference with their privacy rights requiring justification. However, by a majority they found that it was justified in John Catt’s case. Read Mr. Catt’s lawyers’ press release here and the Court Judgment here.