For the first time since the Investigatory Powers Tribunal’s (IPT) establishment in 2000, a complaint against a UK intelligence agency has been upheld. The IPT, which oversees Britain’s secret agencies, is one of its most secretive and deferential courts. In a judgment last week, the IPT announced that the intelligence-sharing rules between the United States National Security Agency (NSA) and its British equivalent Government Communications Headquarters (GCHQ) governing the exchange of information collected through ‘mass surveillance of internet communications’ were against UK human rights law.
The tribunal ruled that “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 of Human Rights]”. Article 8 of the European Convention on Human Rights (ECHR) confers the right to respect for private and family life and Article 10 of the ECHR confers the right to freedom of expression.
The security agency’s access to information obtained by the United States National Security Agency (NSA) was held to be illegal for at least the last seven years, beginning with the introduction of the PRISM intercept programme in 2007.
In this case, UK’s mass surveillance techniques were challenged by Human Rights groups including Liberty and Privacy International with concerns regarding the information acquiring practices of the GCHQ and the NSA having been raised.
Contesting the significance of the decision, a GCHQ spokesperson stated the IPT’s decision as affecting only a small area of its information collection regime. And this claim, sadly, rings true. The tribunal in this judgment upheld the legality of the current intelligence sharing operation between the US and the UK, having noted that the UK’s bulk interception regime contains adequate procedural safeguards, thus following the court’s assertion of the lawfulness of the intelligence sharing programme in a previous judgment in December 2014. It is only the previous procedures that have been declared illegal, though that admittedly covers a considerable span.Some of the secrecy surrounding the regime having been declared unlawful some amount of details regarding the rules, processes and safeguards in the regime has been, by necessity, brought brought into the public domain.
The extent of the information sharing operation was revealed from documents provided by NSA whistleblower Edward Snowden. While most of the outrage generated by Snowden’s released documents has been focused on the NSA, the GCHQ has reportedly been even more flagrant in its activities.
The GCHQ has long sought protection in the nature of its activities. However, the ruling, in what is arguably the most crucial step, suggests that an increase in public understanding and knowledge regarding the work carried out by the GHCQ will now be needed. In their defence, the agencies make a distinction between intrusive “mass surveillance”, which they insist they don’t indulge in, and “bulk interception” of electronic communications, which they deem necessary in pursuit of terrorist or criminal activity. The legal director for Liberty, one of the plaintiffs, claimed that by keeping the public in the dark about its programmes, the GCHQ acted in violation of human rights and the disclosure of its activities forced by the claimants deemed them lawful.
However, the dissatisfaction with the tribunal’s belief that the limited safeguards are an adequate protection of citizens’ privacy in relation to the unfettered power the GCHQ possesses over private communications is likely to culminate in an appeal before the European Court of Human Rights.
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