Investigatory Powers Tribunal rules GCHQ mass surveillance programme TEMPORA is legal in principle
The Investigatory Powers Tribunal (IPT) today 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.
The Tribunal has not yet decided whether the bulk surveillance disclosed by Edward Snowden is justified.
Privacy International and co-claimant Bytes for All (a Pakistani organisation) will lodge an application to the European Court of Human Rights, challenging the Tribunal's first finding that mass surveillance under RIPA could in principle comply with Britain's human rights obligations.
PI and Bytes for All will also challenge the decision of the Tribunal to rely upon the content of secret policies in reaching its decision.
The decision today was in relation to two surveillance programmes, known as 'TEMPORA' and 'PRISM'. Our appeal will also concern these two programmes.
The existence of TEMPORA has been disclosed by Edward Snowden but the British Government has said it will "neither confirm nor deny" its existence. It allows for the bulk interception of internet traffic via fibre optic cables going into and out of the UK.
Given the government's "neither confirm nor deny" stance the Tribunal could only consider whether the legal framework would hypothetically allow GCHQ to lawfully tap undersea fibre optic cables and conduct mass surveillance of external and internal communications. The Tribunal found that, based on secret government policies, if such surveillance activities were taking place, they would in principle be lawful.
The Tribunal has not yet considered the proportionality of GCHQ's actions, examined the Snowden documents, or reviewed underlying documents and material held by GCHQ and the security services. The Tribunal would only do so in a secret closed hearing.
The Tribunal also found that the vast intelligence sharing with the NSA and other foreign intelligence and access to the US' PRISM programme do not contravene the right to privacy despite there being no explicit legislation regulating such activities. In so finding, the Tribunal relied upon the content of secret policies, the existence of which the government was forced to disclose as a result of the IPT claim. The policies reveal that the government considers it justifiable to engage in mass surveillance of every Facebook, Twitter, YouTube and Google user in the country, even if there is no suspicion that the user has committed any offence, by secretly redefining Briton's use of them as "external communications". Other previously secret "arrangements" revealed during the case showed Britain's 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.
Given that the Tribunal's decision rests upon hitherto secret government policies which were only made clear as a result of the IPT claim, Privacy International has sought a declaration from the Tribunal that GCHQ's actions prior to acknowledgment of these policies were unlawful. This application will be decided by the Tribunal in the coming weeks.
In addition, Privacy International and Bytes for All will appeal to the European Court of Human Rights to scrutinise GCHQ's actions against Britain's human rights obligations to respect citizens' rights to privacy and freedom of expression, enshrined in Articles 8 and 10 of the European Convention on Human Rights. The European Court will also be asked to consider whether provisions in RIPA that afford a higher degree of privacy protections to British residents violate Article 14 of the Convention, which outlaws unlawful discrimination.
Eric King, Deputy Director at Privacy International said:
With GCHQ's mass surveillance of undersea cables reported to have increased by as much as 7000% in the last five years, today's decision by the IPT that this is business as usual is a worrying sign for us all. The idea that previously secret documents, signposting other still secret documents, can justify this scale of intrusion is just not good enough, and not what society should accept from a democracy based on the rule of law."
Carly Nyst, Legal Director at Privacy International said:
The proceedings forced the Government to disclose secret policies governing how foreign intelligence agencies, including the NSA, share information with GCHQ. Privacy International believes that the fact that these secret policies are only now public because we have forced their disclosure in court means that such rules could never make the actions of GCHQ in accordance with the law. The IPT must find that secret law is not law, and should at the very least rule that all UK access to PRISM was unlawful prior to today."
Shahzad Ahmad, Country Director of Bytes for All, Pakistan, said:
As lawyers and activists working in Pakistan, Bytes For All is accustomed to confronting unrestrained State surveillance, but we did not expect that a British court would ever rubber stamp blanket surveillance powers like those contained in RIPA. This decision confirms that not only can the UK intercept communications in and out of the UK on a mass scale, but it can provide those private communications to foreign governments ‚ including Pakistan ‚ with few restrictions. The idea that the UK is not obliged to offer any privacy protections or safeguards to individuals outside of Britain when conducting surveillance is absurd, and puts at risk the privacy and free expression of human rights activists around the world."