GCHQ ‘guilty of unlawful surveillance’ with US
by ANGUS HOWARTH
Feb 7, 2015
AN INTELLIGENCE-SHARING regime between UK and US security services was unlawful, a surveillance watchdog has ruled.
Judges on the Investigatory Powers Tribunal (IPT), which deals with complaints against GCHQ, MI5 and MI6, found intercepted communications were provided to Britain’s listening post GCHQ under a programme that, up until December, breached human rights laws.
However, during the legal proceedings leading up to the judgment, the government revealed previously secret details of the legal framework that governs the mass interception and intelligence-sharing regime – and by doing so made it compliant with the European Convention on Human Rights.
The complicated ruling in essence means that, prior to December, the programme was unlawful because the public were unaware of the safeguards in place – but since they were revealed by the hearings, the human rights violation has been addressed.
Human rights groups Liberty, Privacy International and Amnesty brought a legal challenge against GCHQ following disclosures made by US National Security Agency (NSA) whistleblower Edward Snowden about mass surveillance programmes known as Prism and Upstream.
Yesterday’s ruling has been broadly welcomed by the groups. However, they disagree that the safeguards revealed in the course of the proceedings are sufficient to make GCHQ’s intelligence-sharing activities lawful and will challenge the decision at the European Court of Human Rights.
It is the first time the tribunal has found against the intelligence agencies in its 15-year history.
GCHQ said the judges had shown that the legal frameworks governing the bulk interception and intelligence-sharing regime were compatible with human rights and the ruling against them was in “one small respect in relation to the historic intelligence-sharing regime”.
A GCHQ spokesman said: “We are pleased that the court has once again ruled that the UK’s interception regime is fully lawful. It follows the court’s clear rejection of accusations of ‘mass surveillance’ in December.
“The IPT has, however, found against the government in one small respect in relation to the historic intelligence-sharing legal regime.
“The court has ruled that the public disclosure of two paragraphs of additional detail, voluntarily disclosed by the government during the litigation, were essential to make the public regime sufficiently foreseeable and therefore fully compatible with the European Convention of Human Rights.
“They found that, to the extent that these two paragraphs were not previously in the public domain, the intelligence-sharing regime prior to that point was in contravention of human rights law.
“But the judgment does not in any way suggest that important safeguards protecting privacy were not in place at all relevant times. It does not require GCHQ to change what it does to protect national security in any way.”
The GCHQ spokesman added: “Today’s IPT ruling reaffirms that the processes and safeguards were fully adequate at all times – it is simply about the amount of detail about those processes and safeguards in the public domain. We welcome the important role the IPT has played in ensuring that the public regime is sufficiently detailed.
“By its nature, much of GCHQ’s work must remain secret. But we are working with the rest of government to improve public understanding about what we do and the strong legal and policy framework that underpins all our work.”
The claimants argued that GCHQ’s methods breached Article 8 of the European Convention on Human Rights (ECHR), the right to privacy, as well as Article 10, which protects freedom of expression.
But in a first written judgment in December, the IPT ruled that the legal regime overseeing GCHQ’s mass surveillance programmes was, from that point, lawful.
A panel of IPT judges said: ‘“We have been able to satisfy ourselves that, as of today, there is no contravention of Articles 8 and 10 by reference to those systems.
“We have left open for further argument the question as to whether prior hereto there has been a breach.”
But the tribunal said questions remain over whether the systems which oversee the listening post’s methods of interception were legal in the past.
These questions have now been addressed in yesterday’s second judgment. Essentially, the IPT has found that, by revealing the safeguards in place during the legal proceedings, the intelligence-sharing programme became compliant.
However, prior to this, these legal frameworks were not publicly disclosed and therefore the regime violated Articles 8 and 10 of the European Convention on Human Rights.
James Welch, legal director for Liberty, said: “We now know that, by keeping the public in the dark about their secret dealings with the National Security Agency, GCHQ acted unlawfully and violated our rights.
“That their activities are now deemed lawful is thanks only to the degree of disclosure Liberty and the other claimants were able to force from our secrecy-obsessed government. But the intelligence services retain a largely unfettered power to rifle through millions of people’s private communications – and the tribunal believes the limited safeguards revealed during last year’s proceedings are an adequate protection of our privacy.
“We disagree, and will be taking our fight to the European Court of Human Rights.”
Eric King, deputy director of Privacy International, said: “For far too long, intelligence agencies like GCHQ and NSA have acted like they are above the law.
“Today’s decision confirms to the public what many have said all along – over the past decade, GCHQ and the NSA have been engaged in an illegal mass surveillance-sharing programme that has affected millions of people around the world. We must not allow agencies to continue justifying mass surveillance using secret interpretations of secret laws. The world owes Edward Snowden a great debt for blowing the whistle, and today’s decision is a vindication of his actions.
“But more work needs to be done. The only reason why the NSA-GCHQ sharing relationship is still legal today is because of a last-minute clean-up effort by government to release previously secret ‘arrangements’.
“That is plainly not enough to fix what remains a massive loophole in the law, and we hope that the European Court decides to rule in favour of privacy rather than unchecked state power.”
Elizabeth Knight, legal director at Open Rights Group, said: “This ruling is a very welcome first step but the IPT has not gone far enough.