GCHQ in Cheltenham, Gloucestershire
Ministry of Defence/WikipediaThe Investigatory Powers
Tribunal has ruled that "in principle" GCHQ's Tempora mass
surveillance programme, under which undersea cables were monitored,
is legal. No definitive judgement can be made as the UK government
refuses to publicly acknowledge the existence of Tempora.
The primarily secret court was overseeing the case brought
by Amnesty International, Privacy International and
others against GCHQ. As the government has the
right to "neither confirm nor deny" the existence of the programme
the tribunal has been forced to consider its hypothetical existence
in its ruling. To do this it looked at whether mass surveillance of
all fibre optic cables would be legal. The public was first made
aware of Tempora in top-secret documents released by
whistleblower Edward
Snowden.
On the basis of secret government policies the tribunal
rules that should this surveillance be going on, it would be
lawful. The judges job was not to disclose whether such
surveillance was happening or to confirm details of Tempora. They
worked purely on the basis that the alleged activity undertaken by
GCHQ, as detailed by Snowden, might have taken place -- might being
the operative word.
Don't
miss
What the tribunal still has to decide is whether GCHQ's actions
have been proportional under law. This decision will rely on
evidence from the Snowden documents, reviewed underlying documents
and secret government policies. As such, this will have to take
place in a secret court.
The tribunal has also said that the investigation into whether
the defendants' communications were intercepted, whether under the
Tempora programme or any other, will likely all happen in a secret
court.
In order to reach the conclusions it has come to so far --
including the decision that vast intelligence sharing with foreign
intelligence agencies does not contravene the right to privacy --
the tribunal had to force the government to disclose secret
policies, the existence of which have never before been
acknowledged.
It has brought to light the fact that the government finds it
justifiable to engage in 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. They manage to
do this lawfully by redefining all of these platforms as the
"external communications" of British citizens.
Another secret policy showed that if it is "not technically
feasible" for the government to obtain access to bulk data from
foreign intelligence agencies, Britain's intelligence services can
request access on the government's behalf without needing a
warrant.
A technicality means that now the policies have been disclosed
they cannot be unlawful. This doesn't mean they were unlawful in
the past and the tribunal may rule on this in a future secret court
hearing.
"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," said the
organisation's legal director Carly Nyst.
"The idea that previously secret documents, signposting other
still secret documents, can justify this scale of intrusion is just
not good enough, and not what society should accept from a
democracy based on the rule of law," added Privacy International's
deputy director Eric King.
Privacy International, Amnesty International and Bytes for All
have also said they intend to challenge the tribunal's finding that
mass surveillance was lawful under RIPA in the European Court
of Human Rights. The organisations believe they can challenge this
decision based on Articles
8 and 10 of the Human Convention on Human
Rights (PDF).
"The IPT's decisions -- uniquely -- cannot be appealed within
the UK and this is a disappointing, if unsurprising, verdict from
an overseer that was in part assessing itself," said Amnesty's
legal advisor Rachel Logan. "The government's entire defence has
amounted to 'trust us' and now the tribunal has said the same.
Since we only know about the scale of such surveillance thanks to
Snowden, and given that 'national security' has been recklessly
bandied around, 'trust us' isn't enough."
She went on to say that when the organisations take the appeal
to Strasbourg, she believes the European Court may not be inclined
to trust what the UK has to say on the matter "given what we know
so far".
Don't
miss
The European Court will also be asked to consider whether
affording a higher degree of privacy to British residents
contravenes Articles 14 of the Convention. The clause in RIPA could
be intepreteted as unlawful discrimination, it has been argued.
The next step for the tribunal is to investigate whether prior
to this investigation and ruling, Tempora "in principle" may have
been illegal at that time. It will also have to consider whether
there has been any unlawful interception of the claimants'
communications.
Source Article from http://www.wired.co.uk/news/archive/2014-12/05/ipt-ruling-gchq-tempora http://cdni.wired.co.uk/620x413/g_j/GCHQ-aerial.jpg
GCHQ surveillance programme legal 'in principle'
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