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GCHQ surveillance illegal – but suddenly it’s not

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So has GCHQ been found guilty of breaches in human rights law or not? You’d be right to be confused. The Investigatory Powers Tribunal (IPT) has issued a resumé of a judgment and news reports tended to take a negative line, saying things like “GCHQ unlawfully spied on British citizens“. The Guardian website started with “GCHQ mass internet surveillance was unlawful, court rules” later going with a more precise “UK-US surveillance was unlawful for seven years“.

Yet, on the face of it the IPT has given GCHQ a pretty clean bill of health in terms of its receipt of UK surveillance information from the National Security Agency (NSA). Up there at the top of the Tribunal’s release was this:

“Save in one possible (and to date hypothetical) respect … the current regime, both in relation to Prism and Upstream [US surveillance programmes] and to s.8(4), [of the Regulation of Investigatory Powers Act 2000 (RIPA)], when conducted in accordance with the requirements which we have considered, is lawful and human rights compliant.”

The Tribunal ruled the activities lawful now. But until now (or specifically until the IPT judgment in the Liberty v FCO case last December) they weren’t. What has made them legal now? Well, what made things unlawful previously was not, apparently, that GCHQ accessed (from US sources), downloaded and kept material from mass surveillance of UK emails, phone records and internet searches – but that it failed to tell us that it had accessed, downloaded and kept material from mass surveillance of emails, phone records and internet searches. It’s legal now, in part, thanks to the publicity surrounding this very judgment – from a Tribunal that actually sits in secret.

No law has been passed to make it legal and in the normal world judges cannot make things legal that, the day before, were illegal. But in the wacky world of mass surveillance, apparently they can. The judgment says, in effect, that as long as the nature of the surveillance is publicly known and as long as there are safeguards in place, then it’s fine for a foreign power to grab our stuff and on-pass it to GCHQ. The IPT explains:

“We consider that what is required is a sufficient signposting of the rules or arrangements insofar as they are not disclosed … It is in our judgment sufficient that: (i) Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it (as per Malone v UK [1985] 7 EHRR 14 at paragraph 67); (ii) They are subject to proper oversight.”

The relevant paragraph in Malone says in part: “The Court [of Human Rights] would reiterate its opinion that the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention. The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by Article 8 paragraph 1 – especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident.”

So ECHR Article 8 paragraph 2 was pleaded in defence against the privacy human rights claim (in Liberty v FCO as in Malone) – that interference with “private and family life” is not in breach if (as per para 2) it “is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country”.

Malone paragraph 67 is saying that it is not acceptable merely to pass a law but that that law must conform to Article 8 in the sense of not allowing arbitrary actions by the state. GCHQ/the Foreign Office fell foul of this to the extent that it was not sufficiently public about what it was doing – the nature of what they were doing and the controls upon it should have been in the public domain.

The tribunal quotes from Bykov v Russia (2009): “The law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference.”

And the IPT goes on to suggest that there is exactly such protection in Britain, saying “we are satisfied that there are adequate arrangements in place for the purpose of ensuring compliance with the statutory framework and with Articles 8 and 10 [freedom of expression] of the Convention, so far as the receipt of intercept from Prism and/or Upstream is concerned.” Indeed the very judgment that the Tribunal has partially published has helped no end in ensuring GCHQ’s activities are now honest, decent and above board.

And, one must suppose, Edward Snowden himself by revealing all this stuff in the first place has played his part in ensuring it is, after all, legal – whereas if he’d kept quiet about it, it would still be illegal – but we wouldn’t have known so we couldn’t have done anything about it… Funny old world.

Twitter: alrich0660

Carl Gardner explains the IPT judgment in well under 140 characters of a tweet here: “It would’ve been lawful if you’d explained it; it wasn’t because you didn’t, but you have now so it is”.

Note: Al’s Law remains unconvinced that mass surveillance (or “bulk interception” as GCHQ calls it – they deny mass surveillance) is actually legal because mass downloading and retention of material remains, on a proper reading of the Regulation of Investigative Powers Act, illegal in itself, whatever the oversight regime – as argued here: Charles Farr’s flawed arguments. This is true even if the material is not examined, merely kept for possible future use.

About alrich

Journalist and blogger on legal and financial/economics issues

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