In a surprising ruling, a UK court has said that UK intelligence agencies acted unlawfully in the past when they shared private communications information collected by the US National Security Agency (NSA).
According to an order dated this morning (6 February), the Investigatory Powers Tribunal—which deals with complaints about intelligence services—ruled that, prior to December 2014, "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."
The ECHR is the European Convention on Human Rights; Article 8 protects the right to a private life, while article 10 protects the right to freedom of expression. Prism and Upstream are two NSA surveillance programmes disclosed in the Snowden documents. This order concerns the use of this data by the UK's Government Communications Headquarters (GCHQ).
The case against GCHQ was brought by activist groups including Privacy International, Liberty, and Amnesty International.
This follows a judgment in December that the intelligence sharing regime between GCHQ and the NSA was legal—now. The latest order echoes that the regime "now complies with the said Articles."
This is because additional details on the regime were publicly disclosed during the legal proceedings; the fact that this information was now in the public domain, the Court ruled, made the regime compliant.
In an emailed statement, Privacy International Deputy Director Eric King 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 program that has affected millions of people around the world. "
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."
Some of the claimants are appealing against the IPT's previous ruling that the intelligence sharing is now lawful. Privacy International also said it now intends to ask the courts to confirm if its communications data was unlawfully collected and, if so, to demand its deletion.
GCHQ presented the order's findings against it as a relatively small detail. A GCHQ spokesperson said: "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. We welcome the important role the IPT has played in ensuring that the public regime is sufficiently detailed."