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PI and Liberty submit a new legal challenge against MI5

By Privacy International (guest author) · February 12, 2020

On 1 February 2020, EDRi member Privacy International (PI) and civil rights group Liberty filed a complaint with the Investigatory Powers Tribunal, the judicial body that oversees the intelligence agencies in the United Kingdom, against the security service MI5 in relation to how they handle vast troves of personal data.

In mid-2019, MI5 admitted, during a case brought by Liberty, that personal data was being held in “ungoverned spaces”. Much about these ungoverned spaces, and how they would effectively be “governed” in the future, remained unclear. At the moment, they are understood to be a “technical environment” where personal data of an unknown number of individuals was being “handled”. The use of “technical environment” suggests something more than simply a compilation of a few datasets or databases.

The longstanding and serious failings of MI5 and other intelligence agencies, in relation to these “ungoverned spaces” first emerged in PI’s pre-existing case that started in November 2015. The case challenges the processing of bulk personal datasets and bulk communications data by the UK Security and Intelligence Agencies.

In the course of these proceedings, it was revealed that PI’s data were illegally held by MI5, among other intelligence and security agencies. MI5 deleted PI’s data while the investigation was ongoing. With the new complaint PI also requested the reopening of this case in relation to MI5’s actions.

In parallel proceedings brought by Liberty against the bulk surveillance powers contained in the Investigatory Powers Act 2016 (IPA), MI5 admitted that personal data was being held in “ungoverned spaces”, demonstrating a known and continued failure to comply with both statutory and non-statutory safeguards in relation to the handling of bulk data since at least 2014. Importantly, documents disclosed in that litigation and detailed in the new joint complaint showed that MI5 had sought and obtained bulk interception warrants on the basis of misleading statements made to the relevant authorities.

The documents reveal that MI5 not only broke the law, but for years misled the Investigatory Powers Commissioner’s Office (IPCO), the body responsible for overseeing UK surveillance practices.

In this new complaint, PI and Liberty argue that MI5’s data handling arrangements result in the systematic violation of the rights to privacy and freedom of expression (as protected under Articles 8 and 10 of the European Convention of Human Rights) and under EU law. Furthermore, they maintain that the decisions to issue warrants requested by MI5, in circumstances where the necessary safeguards were lacking, are unlawful and void.

Privacy International
https://privacyinternational.org/

MI5 ungoverned spaces challenge
https://privacyinternational.org/legal-action/mi5-ungoverned-spaces-challenge

Bulk Personal Datasets & Bulk Communications Data challenge
https://privacyinternational.org/legal-action/bulk-personal-datasets-bulk-communications-data-challenge

The Investigative Tribunal case no. IPT/15/110/CH
https://privacyinternational.org/sites/default/files/2019-08/IPT-Determination%20-%2026September2018.pdf

Reject Mass Surveillance
https://www.libertyhumanrights.org.uk/our-campaigns/reject-mass-surveillance

MI5 law breaking triggers Liberty and Privacy International legal action (03.02.2020)
https://www.libertyhumanrights.org.uk/news/press-releases-and-statements/mi5-law-breaking-triggers-liberty-and-privacy-international-legal

(Contribution by EDRi member Privacy International)