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Mass Internet Surveillance by UK's GCHQ Was Unlawful After All, Secretive Court Rules

The UK's most secretive court upheld a complaint against eavesdropping agency GCHQ for the first time in history, regarding British surveillance "arrangements" with the US.

by Ben Bryant
Feb 6 2015, 6:10pm

In July 2013 the UK Intelligence and Security Committee released a statement following whistleblower Edward Snowden's revelations about US-UK intelligence sharing. It said that whenever UK monitoring agency GCHQ sought information from the US, it was legally authorized with a warrant for interception signed by a government minister.

Today the UK's most secretive court has ruled that this was not the case.

Mass surveillance of the internet by monitoring agency GCHQ was not carried out within the law, the Investigatory Powers Tribunal (IPT) ruled. GCHQbreached human rights laws by accessing raw information originally obtained by the US National Security Agency without a warrant, according to the UK surveillance watchdog.

The landmark ruling marks the first time since the establishment of the judicial oversight body in 2000 that it has ever upheld a complaint against any of the UK's intelligence agencies.

GCHQ can access raw data from NSA without a warrant, secret policies disclose. Read more here.

The ruling relates to data sharing between the US and UK. In October secret policies governing the US-UK intelligence sharing arrangements revealed that an agreement gave GCHQ access to unlimited NSA data without a warrant.

In December the IPT ruled that these arrangements are now legal in principle, because the policies have been made public. Today's ruling establishes that the arrangements were not lawful prior to December 2014, however.

The two-page ruling said: "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 pursuant to Prism and/or (on the Claimants' case) Upstream, contravened Articles 8 or 10 ECHR (European Convention on Human Rights)."

Article 8 of the ECHR relates to respect for private and family life, home and correspondence, while Article 10 provides the right to freedom of expression and information. The ECHR usually requires that the rules and procedures governing intelligence sharing are made public.

A legal challenge in October revealed the existence of the secret internal policies that allowed Britain's intelligence services to obtain warrantless access to bulk intelligence from the NSA and other foreign agencies, storing it for up to two years.

GCHQ was forced to reveal the details of the previously unknown internal policies during legal proceedings launched by Privacy International, Liberty, and Amnesty International which claimed that GCHQ's receipt of private communications intercepted by the NSA through its mass surveillance programs Prism and Upstream was illegal.

Under the so-called "arrangements," outlined in the secret policies, no warrant was necessary to obtain the data. Campaigners said this contradicted assurances by parliament's Intelligence and Security Committee in July last year that a warrant signed by a minister was in place whenever GCHQ obtained information from the US.

New documents reveal the UK's policies on spying on attorney-client communications. Read more here.

Lawyers additionally argued that information obtained via the arrangements sidestepped safeguards provided by the UK legal system that would apply, for example, to communications intercepted by Tempora — the UK's program of interception on fiber optic cables that carry internet data in and out of the UK.

At IPT hearings last year, lawyers for Liberty and Privacy International also alleged that the intelligence services were constructing huge databases out of multiple email interceptions. The Regulation of Investigatory Powers Act (RIPA) was no longer fit to safeguard against the interception of communications without a warrant, they alleged.

The IPT, which hears complaints about intelligence agencies and government bodies that carry out surveillance under RIPA, is set to examine dozens more GCHQ-related claims in the wake of Snowden's revelations.

Next month the secretive courtwill hear evidence from human rights NGO Reprieve concerning government surveillance of legally privileged attorney-client communications. The primacy of confidential communication between client and lawyer is enshrined in UK law and is considered crucial to the pursuance of a fair trial.

Eric King, deputy Director of Privacy International, told VICE News: "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 program that has affected millions of people around the world.We must not allow agencies to continue justifying mass surveillance programs using secret interpretations of secret laws."

James Welch, legal director for Liberty, explained to VICE News: "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 legal proceedings are an adequate protection of our privacy. We disagree, and will be taking our fight to the European Court of Human Rights."

A GCHQ press statement said that the judgment focuses on a "discrete" and "purely historical" issue and did not require the agency to change what it does to protect national security.

A spokesperson said: "We are pleased that the court has once again ruled that the UK's bulk interception regime is fully lawful. It follows the court's clear rejection of accusations of 'mass surveillance' in their December judgment."

They added: "Today's IPT ruling re-affirms that the processes and safeguards within the intelligence-sharing regime were fully adequate at all times — it is simply about the amount of detail about those processes and safeguards that needed to be in the public domain."

"By its nature, much of GCHQ's work must remain s e c r e t [sic]," they added.

On Wednesday, UK Prime Minister David Cameron accepted a recommendation from Sir Anthony May, the interception of communications commissioner, that police should seek the permission of a judge if they want to retrieve the phone and email records of journalists.

The Interception of Communications Commissioner's Office, the prime minister's snooping watchdog, found that 19 police forces made more than 600 applications to uncover confidential sources over the last three years.

Follow Ben Bryant on Twitter: @benbryant