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

3 July 2013

In the wake of revelations that the UK Government is accessing wide-ranging intelligence information from the US and is conducting mass surveillance on citizens across the UK, Privacy International has commenced legal action against the Government, charging that the expansive spying regime is seemingly operated outside of the rule of law, lacks any accountability, and is neither necessary nor proportionate.

The claim, filed in the Investigatory Powers Tribunal (IPT), challenges the UK Government on two fronts. Firstly, for the failure to have a publicly accessible legal framework in which communications data of those located in the UK is accessed after obtained and passed on by the US National Security Agency through the Prism programme.  Secondly, for the indiscriminate interception and storing of huge amounts of data via tapping undersea fibre optic cables through the Tempora programme. 

Dinah Rose QC and Ben Jaffey from Blackstone Chambers and Dan Squires from Matrix Chambers were instructed by Bhatt Murphy Solicitors who are acting for Privacy International.

Reports state that the UK had access to the Prism programme since at least June 2010, and has generated 197 intelligence reports from the system in 2012. Without a legal framework, which would allow citizens to know the circumstances in which such spying would take place, the Government effectively runs a secret surveillance regime, making it nearly impossible to hold them accountable for any potential abuses. The absence of this legal framework appears to be in breach of the European Convention of Human Rights, Article 8, which provides the right to privacy and personal communications, and Article 10, which provides the right to freedom of expression.

Additionally, Privacy International is challenging the Government's Tempora operation, a programme that reportedly secretly conducts mass surveillance by tapping fibre optic cables, giving the Government access to huge amounts of data on both innocent citizens and targeted suspects. Tempora is the name of a core programme within Mastering the Internet, designed to intercept internet traffic that flows through the undersea fibre-optic cables that land in the UK. It is reported that the GCHQ project has, since 2008, steadily been building capability and now claims to provide the “biggest internet access” of any intelligence agency in the Five Eyes alliance of eavesdropping agencies in the United Kingdom, the United States, Canada, Australia, and New Zealand. According to the Guardian, in 2011 “more than 39bn events in a 24-hour period” were recorded producing “larger amounts of metadata collection than the NSA".

The Tempora programme by its very nature appears to violate the underlying requirement for interception, which requires that surveillance is both necessary and proportionate under the Regulation of Investigatory Powers Act 2000 (RIPA).

While Privacy International intended to file the Prism claim in the Administrative Court, which would have made the proceedings public, Government lawyers, upon receiving notice of our intention, vociferously notified us that we could not bring such a claim in the Administrative Court. Rather, the claim has been forced to be filed with the IPT, a secret tribunal that does not make its proceeding public or have to justify reasons for its decisions.

In December 2014, the IPT followed its previous judgments in finding that UK security services may in principle carry out mass surveillance of all fibre optic cables entering or leaving the UK under RIPA, the 2000 law that pre-dates the modern internet.

In summary, the Tribunal in today's decision said the system of mass surveillance disclosed by Edward Snowden could in principle be lawful. But the Tribunal has asked for more submissions about whether receiving bulk intercepted material from foreign intelligence agencies (such as the NSA) has been lawful until up now. This is because until the recent hearings, the rules and procedures governing intelligence sharing have been kept totally secret. The European Convention on Human Rights usually requires that the rules and procedures be public.

Privacy International intends to appeal the decision to the European Court of Human Rights.