UK court finds secret spying docs made surveillance illegal

By EDRi · February 11, 2015

Several human rights groups are celebrating a major victory against the Five Eyes, an intelligence alliance comprising Australia, Canada, New Zealand, the UK and the US, as the UK surveillance tribunal ruled on 6 February that the Government Communications Headquarters (GCHQ) acted unlawfully in accessing millions of private communications collected by the National Security Agency (NSA) up until December 2014.

The decision marks the first time that the Investigatory Powers Tribunal (IPT), the only UK court empowered to oversee GCHQ, the domestic security agency MI5 and the foreign intelligence service MI6, has ever ruled against the intelligence and security services in its fifteen-year history. The case was only possible thanks to the NSA whistleblower Edward Snowden whose leaked documents provided the facts needed to challenge the long-standing intelligence sharing relationship.

The receipt of unanalysed intercepted material from partners like NSA makes up a huge percentage of the raw data that GCHQ analyses. Through their secret intelligence sharing relationship with the NSA, GCHQ has had intermittently unrestricted access to the mass electronic surveillance data mining program PRISM as well as NSA’s Upstream programme. In his witness statement to the Investigatory Powers Tribunal in May 2014, Charles Farr, Director of the Office for Security and Counter-Terrorism attested that:

“The immense value of [GCHQ’s relationships with the NSA] for the UK in part reflects the fact that the US intelligence agencies are far larger and much better resourced than the Intelligence Services… In simple terms, the US can provide the UK with intelligence that the UK with its far more limited resources could not realistically obtain by itself.”

In a previous December 2014 ruling, the IPT held that GCHQ’s access to NSA data was lawful from that time onward because certain of the secret policies governing the US-UK intelligence relationship were made public during Privacy International’s case against the security services. Yet that belated disclosure could not remedy the lack of transparency regarding the UK-US sharing prior to December 2014, meaning that all UK access to NSA intelligence material was unlawful before the Court’s judgement.

In light of the 6 February ruling, Privacy International and Bytes for All, a Pakistani human rights organisation, will now ask the court to confirm whether their communications were unlawfully collected prior to December 2014 and, if so, demand their immediate deletion.

While the decision is a positive one, Privacy International and Bytes for All disagree with the tribunal’s earlier conclusion that the forced disclosure of a limited subset of rules governing intelligence-sharing and mass surveillance is sufficient to make GCHQ’s activities lawful as of December 2014. Both organisations will shortly lodge an application with the European Court of Human Rights (ECHR) challenging the tribunal’s December 2014 decision.

While that appeal is pending, GCHQ will retain unfettered access to this material intercepted by the NSA. The two agencies by default share intelligence gleaned from PRISM and Upstream, sometimes with few or no safeguards. Secret policies divulged during Privacy International’s case revealed that British intelligence services can request or receive access to bulk data from foreign agencies like the NSA without a warrant whenever it would “not be technically feasible” for the government to obtain it themselves.

Suffice it to say, there is lots more still to be done! In addition to Privacy International’s and Bytes for All’s challenge in the European Court of Human Rights, further rulings are still expected from the IPT on other aspects of the challenge. Those should come later this year. Privacy International will also be creating a service that would allow citizens from around the world to seek the deletion of any illegally-obtained records that GCHQ holds on them.

GCHQ-NSA intelligence sharing unlawful, says UK surveillance tribunal (06.02.2015)

The Investigatory Powers Tribunal ruling of February 2015 (06.02.2015)

Victory! UK surveillance tribunal finds GCHQ-NSA intelligence sharing unlawful (06.02.2015)

Witness statement from UK counter-terrorism chief Charles Farr(16.05.2014)

The Investigatory Powers Tribunal ruling of December 2014 (05.12.2014)

Privacy International v. Secretary of State for the Foreign and Commonwealth Office et al.

(Contribution by Eric King, Privacy International)