“Intelligence sharing between UK and USA was unlawful” rules Investigatory Powers Tribunal

GCHQ at Cheltenham, Gloucestershire

GCHQ at Cheltenham, Gloucestershire

GCHQ acted unlawfully in accessing millions of people’s private communications collected in bulk by the USA’s National Security Agency. That’s the ruling of the Investigatory Powers Tribunal, which was announced today.

The Tribunal found that the intelligence sharing relationship was unlawful prior to December 2014 because rules governing the UK’s access to the National Security Agency’s (NSA) mass electronic surveillance programmes PRISM and Upstream were secret.

The landmark ruling represents the very first time the Tribunal – which is designed specifically to consider complaints brought against GCHQ, MI5 and MI6 – has found against the intelligence agencies in its 15-year history.

The data-sharing deal between the USA and UK came to light last year during legal proceedings – brought by civil liberties groups Liberty, Privacy International and Amnesty International – designed to challenge GCHQ’s surveillance practices in the wake of the Snowden revelations.

In December 2014, the Tribunal held that GCHQ’s access to NSA intelligence was lawful from that time onward because secret policies governing the UK-US relationship were made public during the case.

Liberty disagrees that the limited safeguards revealed are sufficient to make GCHQ’s mass surveillance and intelligence sharing activities lawful, and will now challenge the Tribunal’s December decision at the European Court of Human Rights.

James Welch, legal director for Liberty, said: “We now know that, by keeping the public in the dark about its secret dealings with the National Security Agency, GCHQ acted unlawfully and violated our rights. That its activities are now deemed lawful is thanks only to the degree of disclosure Liberty and the other claimants were able to force from our secrecy-obsessed Government.”

Welch added: “The Intelligence Services retain a largely unfettered power to rifle through millions of people’s private communications. The Tribunal believes the limited safeguards revealed during last year’s legal proceedings are an adequate protection of our privacy. We disagree. Accordingly, we will now be taking our fight to the European Court of Human Rights.”

Eric King, deputy director of Privacy International, commented: “For far too long, intelligence agencies like GCHQ and the NSA have acted like they are above the law. The Tribunal’s decision confirms to the public what many have said all along. Over the past decade, GCHQ and the NSA have been engaged in an illegal mass surveillance sharing program that has affected millions of people around the world.”

King also said: “We must not allow agencies to continue justifying mass surveillance programs using secret interpretations of secret laws. The world owes Edward Snowden a great debt for blowing the whistle. Today’s decision is a vindication of his actions, but more work needs to be done.”

In conclusion, King stated: “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’. That’s plainly not enough to fix what remains a massive loophole in the law, and we very much hope that the European Court decides to rule in favour of privacy rather than unchecked State power.”

Response from GCHQ

In response to today’s ruling, GCHQ has issued the following statement on its website:
The Investigatory Powers Tribunal (IPT) has issued its second judgement on challenges to the lawfulness of (1) the UK’s bulk interception powers and (2) the intelligence-sharing arrangements between the UK and the US National Security Agency (NSA).
The judgement reaffirms the Tribunal’s main December ruling which found strongly in favour of the Government. The Court ruled that the legal frameworks governing both the bulk interception regime – found in Section 8(4) of the Regulation of Investigatory Powers Act – and the intelligence-sharing regime were fully compatible with Human Rights, in particular the right to privacy.
The judgement focuses primarily on a discrete and purely historical issue – whether those legal frameworks were also fully compatible at a point before these legal proceedings began. It confirms the UK’s bulk interception regime was fully compliant with the right to privacy at all times, both before and at the time of the legal proceedings.
A GCHQ spokesperson said: “We are pleased that the Court has once again ruled that the UK’s bulk interception regime is fully lawful. It follows the Court’s clear rejection of accusations of ‘mass surveillance’ in its December judgement.”
The IPT has, however, found against the Government in one small respect in relation to the historic intelligence-sharing legal regime. The Court has ruled that the public disclosure of two paragraphs of additional detail, voluntarily disclosed by the Government during the litigation, was essential to make the public regime sufficiently foreseeable and therefore fully compatible with the European Convention on Human Rights.
They found that, to the extent that these two paragraphs were not previously in the public domain, the intelligence-sharing regime prior to that point was in contravention of Human Rights law.
However, the judgement does not in any way suggest that important safeguards protecting privacy were not in place at all relevant times. It does not require GCHQ to change what it does to protect national security in any way.
The GCHQ spokesperson added: “Today’s IPT ruling re-affirms that the processes and safeguards within the intelligence-sharing regime were fully adequate at all times. It’s simply about the amount of detail about those processes and safeguards that needed to be in the public domain. We welcome the important role the IPT has played in ensuring that the public regime is sufficiently detailed.”
“By its very nature, much of GCHQ’s work must remain secret but we are working with the rest of Government to improve public understanding about what we do and the strong legal and policy framework that underpins all of our work. We continue to do what we can to place information safely into the public domain.”
About the Author
Brian Sims BA (Hons) Hon FSyI, Editor, Risk UK (Pro-Activ Publications) Beginning his career in professional journalism at The Builder Group in March 1992, Brian was appointed Editor of Security Management Today in November 2000 having spent eight years in engineering journalism across two titles: Building Services Journal and Light & Lighting. In 2005, Brian received the BSIA Chairman’s Award for Promoting The Security Industry and, a year later, the Skills for Security Special Award for an Outstanding Contribution to the Security Business Sector. In 2008, Brian was The Security Institute’s nomination for the Association of Security Consultants’ highly prestigious Imbert Prize and, in 2013, was a nominated finalist for the Institute's George van Schalkwyk Award. An Honorary Fellow of The Security Institute, Brian serves as a Judge for the BSIA’s Security Personnel of the Year Awards and the Securitas Good Customer Award. Between 2008 and 2014, Brian pioneered the use of digital media across the security sector, including webinars and Audio Shows. Brian’s actively involved in 50-plus security groups on LinkedIn and hosts the popular Risk UK Twitter site. Brian is a frequent speaker on the conference circuit. He has organised and chaired conference programmes for both IFSEC International and ASIS International and has been published in the national media. Brian was appointed Editor of Risk UK at Pro-Activ Publications in July 2014 and as Editor of The Paper (Pro-Activ Publications' dedicated business newspaper for security professionals) in September 2015. Brian was appointed Editor of Risk Xtra at Pro-Activ Publications in May 2018.

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