The U.K.’s Investigatory Powers Tribunal (IPT), the judicial oversight body which handles complaints relating to domestic intelligence agencies, has ruled that GCHQ acted unlawfully in the handling of intercepted communications data in another case brought by civil liberties groups, including Liberty, Privacy International and Amnesty International.
The IPT judged that GCHQ acted unlawfully and breached its own internal policies on interception, examination and retention of emails from two human rights organizations — the Egyptian Initiative for Personal Rights (EIPR) and the Legal Resources Centre (LRC) in South Africa — thereby breaching their human rights.
The court ruled only that “error” and “technical” failures led to the spy agency to break its internal interception policies.
In the case of the EIPR, the tribunal writes:
… the time limit for retention permitted under the internal policies of GCHQ, the
intercepting agency, was overlooked in regard to the product of that interception,
such that it was retained for materially longer than permitted under those policies.
We are satisfied however that the product was not accessed after the expiry of the
relevant retention time limit, and the breach can thus be characterised as technical
In its ruling pertaining to the LRC it writes that “the procedure laid down by GCHQ’s internal policies for selection of the communications for examination was in error not followed in this case”.
These internal policies are not detailed — with the IPT reiterating its “general duty” to avoid disclosing information that might be “contrary to the public interest or prejudicial to national security … or the continued discharge of the functions of any of the intelligence services”. Which of course has the convenient by-product of making it impossible to judge their judgement.
As regards the legality of intercepting emails from human rights groups, the IPT deems the communications in question were “lawfully and proportionately intercepted and accessed” — citing section 8(4) of RIPA.
However the recent independent review of U.K. surveillance legislation, conducted by David Anderson, condemned the Regulation of Investigatory Powers Act as an incomprehensible patchwork — calling for new oversight legislation to be drafted “from scratch”. The U.K. government has also said it intends to “modernise” surveillance legislation in a forthcoming Investigatory Powers Bill.
“A comprehensive and comprehensible new law should be drafted from scratch, replacing the multitude of current powers and providing for clear limits and safeguards on any intrusive power that it may be necessary for public authorities to use,” wrote Anderson in his review.
The shape of RIPA’s replacement remains to be seen. In the meanwhile the extent of law breaches by U.K. domestic intelligence agencies operating under a problematic patchwork of legislation and, prior to Snowden’s whistleblowing, without parliamentary scrutiny in a climate of near perfect secrecy, is still being determined.
Commenting on the latest IPT ruling in a statement, James Welch, Legal Director for Liberty, said: “Last year it was revealed that GCHQ were eavesdropping on sacrosanct lawyer-client conversations. Now we learn they’ve been spying on human rights groups. What kind of signal are British authorities sending to despotic regimes and those who risk their lives to challenge them all over the world? Who is being casual with human life now?”
It’s the second time the IPT has ruled against GCHQ in a matter of months. Back in February the court judged that data-sharing activities between the NSA and GCHQ had breached European Human Rights law, again after a challenge by civil rights groups.
Despite that ruling the IPT deemed data-sharing activities to have been put on a legal footing since December 2014 — owing to their disclosure (post-Snowden), and the subsequent yielding of details about data-sharing policies and how legal compliance is achieved (not that those details have been made public, of course).
The IPT has previously also ruled that mass surveillance is compatible with human rights principles — although civil rights groups are challenging that position at the European level, in the Court of Human Rights in Strasbourg.
The U.K. government has generally taken a far more hawkish stance on surveillance than European institutions, post-Snowden. Earlier this year Europe’s top rights body, the Parliamentary Assembly of the Council of Europe, adopted a resolution against mass surveillance, characterizing it as a threat to democracy and human rights. And last year the European Court of Justice struck down blanket data retention powers as disproportionate.
The U.K. government responded to the ECJ ruling by fast tracking emergency surveillance legislation. A new Conservative majority government is also now pushing to legislate to expand data capture investigatory powers, even as the NSA’s domestic surveillance capabilities are being curtailed over the pond in the U.S.
The latest IPT judgement confirms GCHQ intercepted the communications of human rights groups — something that U.S. intelligence agencies have also done, according to NSA whistleblower Edward Snowden, who provided details last year in his testimony to the Council of Europe during their enquiry into mass surveillance.
Also last year Snowden spoke out against the ‘anything goes’ privacy intrusions of GCHQ — characterizing U.K. intelligence agencies as having “really no limits on their capabilities”. And when a domestic spy agency is found to have broken its own laws by its own oversight court in multiple instances it seems pretty clear that better limits are needed.