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On Her Majesty’s Secret Service: UK mass-surveillance

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About The Author

Rowan Clapp (Former Public Law & Human Rights Editor)

Rowan graduated from Durham University in 2013 with a First Class degree in Philosophy and Theology. He completed the GDL at BPP University on a Lord Haldane Scholarship and Hardwicke Entrance Award from Lincoln’s Inn. He is currently undertaking an LLM at University College London and working as a volunteer caseworker at Reprieve.

In my previous article I provided an overview of the mass surveillance undertaken by the US government, which was dramatically unearthed by former CIA employee, Edward Snowden.

Snowden has been hailed as a martyr-like ‘patriot’ and a poisonous ‘traitor’ with equal frequency. My previous article deliberately omitted any praise or condemnation for Snowden in favour of a focus on the revealed surveillance gathering practices of NSA. The scope of their activities is significantly broader and more insidious than previously thought. It seems that they may even be unconstitutional, with US District Judge Richard Leon concluding that:

I have little doubt that the father of our Constitution, James Madison […] would be aghast.

Yet there is more to tell: Snowden believes that this is ‘not just a US problem. The UK has a huge dog in this fight … [GCHQ] are worse than the US”. The intimidating and unsubtle names of GCHQ’s main components provide few assurances: Mastering the Internet, and Global Telecoms Exploitation. What follows is an explanation of the similar and overlapping UK and US mass surveillance programs and a discussion of whether the former may also be acting illegally.

The many uses of RIPA

The Regulation of Investigatory Powers Act received Royal Assent on 26th July 2000 and regulates the use of surveillance by public bodies in the UK as the Foreign Intelligence Surveillance Act does in the US. As such it allows for the collection and compilation of Internet gleaned data for the prevention of criminal activity such as terrorism or even worse, television license fee avoidance.

The 15 years since the introduction of RIPA has seen a significant ‘mission creep’ says Emma Carr, director of the Big Brother Watch group. In fact 800 different public bodies can now use RIPA powers, which should allegedly be used only for the prevention of crime, disorder and for the promotion of the economic well-being of the UK according to this government guide. Carr claims that this mirrors the US government’s misuse of surveillance legislation that:

A lack of transparency, accountability and oversight of how these powers are used has allowed the use of the powers to reach unacceptable levels.

The Snowden leaks did little to vindicate the UK’s position on this front, revealing that:

GCHQ, the UK's eavesdropping agency is intercepting and processing billions of communications every day and sharing the information with the US.

GCHQ can neither confirm nor deny the existence of the operation allegedly codenamed TEMPORA. However, it is suggested that such an operation exists, and involves a mutuality of mass-surveillance gathered information between the UK and US. To get an idea of the kind of information (‘Metadata’) retained by GCHQ about individual web use, this introduction is particularly eye opening. The scope of the operation is similar in scale, (or perhaps greater, depending on who you read) to that of PRISM. It has been described by the German Federal Minister of Justice as an ‘Alptraum’ or ‘Nightmare’.

The Investigatory Powers Tribunal

In a case brought by Privacy International, Bytes for all, Liberty and Amnesty international before the Investigatory Powers Tribunal (the only body capable of reviewing GCHQ, MI5 and MI6) the TEMPORA program came under fire.

TEMPORA not only facilitates surveillance at home but it also provides for information sharing with the US via PRISM and UPSTREAM. The concern is that this sidesteps the protection provided by the UK legal system and its affiliation with the European Convention on Human Rights (ECHR).

Articles 8 & 10 ECHR seem particularly at odds with TEMPORA. Namely, 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.

The ‘arrangements’ between GCHQ and other, foreign intelligence agencies were revealed to the Tribunal in a closed hearing. The government has argued that limited disclosure of the nature and detail of these ‘arrangements’ makes the actions of GCHQ compliant with the HRA 1998 ‘even though [they] remain secret and immune from public scrutiny’.

Regardless, the revealed details about the level of raw data being harvested from the US seems to directly contravene the Intelligence Service Committee’s (ISC) assurances that whenever information was requested from the US a warrant was in place:

In each case where GCHQ sought information from the US, a warrant for interception, signed by a minister, was already in place, in accordance with the legal safeguards contained in the Regulation of Investigatory Powers Act 2000 (RIPA).

This is because here the only criteria that need be fulfilled prior to the access of PRISM obtained documents is that it is ‘not technically feasible’ for the government to obtain the data itself. This appears to be a plain circumvention of the requirement of a warrant stipulated by RIPA and confirmed by the ISC and ‘brings into sharp relief the minimal safeguards and weak restrictions on raw intelligence sharing with foreign governments’. As Eric King explains:

We now know that data from any call, internet search, or website you visited over the past two years could be stored in GCHQ's database and analysed at will, all without a warrant to collect it in the first place.  It is outrageous that the Government thinks mass surveillance, justified by secret “arrangements” that allow for vast and unrestrained receipt and analysis of foreign intelligence material is lawful.

IPT ruling

For the first time in its history, the tribunal ruled against the intelligence services in holding that intelligence sharing between the United States and UK was unlawful before December 2014. Mr Justice Burton explained that in a previous December 2014 ruling, the IPT had confirmed that GCHQ’s access to PRISM and UPSTREAM was lawful but only from that time forward on the basis of secret policies relating to the US-UK intelligence sharing relationship were made public at trial.

As a corollary, the ‘lack of transparency’ on UK-US sharing prior to December 2014 meant that all UK access to NSA intelligence before this time was unlawful, according to the IPT. Quite simply, as the IPT’s website determines:

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 … contravened Articles 8 or 10

At first sight, this is a victory for Liberty et al, and a victory for the privacy of the individual. That is until the ruling of the IPT is dwelled on.

Limited success

GCHQ have disclosed their warrantless mass surveillance practices, but in private. Not even the claimants in the case are privy to this information. What is being said is that we are to take it on trust that appropriate safeguards are in place. It’s easy to see how the national security concerns over the nature of GCHQ’s work could heavily counterbalance the need to publicly reveal their methods. Nevertheless, the claimants (unsurprisingly) think this is insufficient. It is easy to spot the paradox that:

It is ridiculous that the government has been allowed to rely on the existence of secret policies and procedures discussed with the Tribunal behind closed doors – to demonstrate that it is being legally transparent.

As such, Eric King concludes:

The only reason why the NSA-GCHQ sharing relationship is still legal today is because of a last-minute clean-up effort by the government to release previously secret ‘arrangements’.

What is being contested by Privacy International and Bytes for all, is the decision of the tribunal: that the limited disclosure of a small number of the rules relating to UK-US intelligence sharing legitimise GCHQ’s mass-surveillance activities with little change in the actual methods of data collection or safeguards in place.

As such, they are appealing to the European Court of Human Rights. In this vein Matt Scott of Bhatt Murphy has remarked that ‘this is only a partial victory … the litigation must now proceed to the European Court’. Nick Williams of Amnesty International offers support, remarking that:

The UK government’s surveillance practices have been allowed to continue unabated and on an unprecedented scale, with major consequences for people’s privacy and freedom of expression. No-one is above the law and the European Court of Human Rights now has a chance to make that clear.

EUCHR and mass surveillance

The most prominent potential breach of The Convention is of Article 8, which provides that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’. These rights may however be limited ‘in accordance with the law’ and ‘necessary in a democratic society in the interests of national security […] for the prevention of disorder or crime’.

It is easy to see how the right to privacy is impinged by mass surveillance, and the claimants affirm that the limited disclosure of their murky arrangements with NSA is insufficient to constitute a sufficient disclosure as to whether their activities are ‘necessary’. However, the argument against a greater level of disclosure looms large, that ‘by its nature, much of GCHQ’s work must remain secret’ as a GCHQ statement helpfully explained. The assurance in the GCHQ statement that they are working with the government to increase public awareness of their practices seems a bit of an empty promise.

It is likely that GCHQ’s argument demonstrate a consistent unwillingness to make their surveillance practices public. It will argue that its disclosure at the IPT will mean that their existing arrangements are ‘in accordance with the law’. On this point we reach an impasse where the classic dilemma of protecting an individual’s privacy versus protecting an individual full-stop is at work.

It would churlish to provide a prediction of the likely fortunes of the ECHR challenge here. However several things seem apparent to me in the compilation of the last two articles. Following the ‘Snowden Revelations’ the scope of global mass-surveillance is significantly greater than most would have expected. This is a clear legacy of legislation like RIPA and The Patriot Act designed to combat terrorism. Although these statutes are admirably minded and necessarily useful, it’s obvious that the US and UK are straining the original meanings of both statutes, putting it generously. With that in mind, it seems to me that even if the ECHR do not rule that the UK’s TEMPORA programme is (or has been) illegal, it should take a clear stance on the need for better regulation of European mass-surveillance via clearer stipulation of what is and what is not acceptable. It should delineate which information about metadata gathering should be disclosed to the public, which information should be disclosed in private and what need not be disclosed at all. In an age of rapid technological advance, perhaps it would be helpful to establish an external body with the specific goal of regulating the surveillance practices of international surveillance organisations. If not, echoing Lord Leveson’s dramatic reference to The Republic, ‘who guards the guardians?’

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Tagged: Anti-Terror, Human Rights, Privacy Law

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