GCHQ surveillance illegal – but suddenly it’s not

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.

Mass surveillance in the UK: Charles Farr’s flawed arguments

Hang on! Just because UK government security official Charles Farr says GCHQ et al have done nothing unlawful in their mass digital surveillance, that’s no reason to believe him. You wouldn’t believe a burglar rifling through your drawers; why believe the spokesmen for the people rifling through your personal emails and internet searches?

Farr has put in a defence in the case brought by Privacy International against the Government, not a statement of the law, yet it is being treating as gospel truth. In particular people are demanding the law be changed – conceding that the surveillance is currently lawful (among them pro-security services types such as Lady Neville-Jones).

In fact a judge has not ruled in the case yet, and there are fundamental flaws in Farr’s argument that UK-originated digital material on overseas servers is fair game even though it originated in or returned to the “British Islands” (in the quaint formulation of the 2000 Regulation of Investigatory Powers Act).

For starters it is strongly arguable in law that nothing in the Act can sanction unreasonable mass surveillance – since that was not the purpose of the Act. RIPA was intended to enact a European Directive banning such downloading and storing of personal material and a judge will interpret it in that light. He or she is likely to take a dim view of any alleged “loopholes” in it. (This argument is made briefly below and at length here.)

But Farr’s case is further flawed – not least by a disingenuous attempt to claim parliamentary sanction for mass surveillance on the basis of an arcane exchange in the House of Lords one July evening in the year 2000.

David Miranda Schedule 7 detention: Arbitrary or Alice in Wonderland?

Schedule 7 to the Terrorism Act, under which a Guardian journalist’s partner, David Miranda, was held for nine hours at Heathrow, is an odd piece of legislation – not least because, unusually for criminal law, it deals with people who are for the most part wholly innocent. It is drafted with the intent – and has clearly had the effect – of detaining large numbers of innocent people to ask them about their terrorist activities.

As a result about 70,000 people were detained under Schedule 7 in 2011-12 – of whom only 24 were then arrested for terrorist related offences.

The authorities are perfectly happy with this appalling hit rate. The official guidance to officers when they use Schedule 7 is as follows: “Examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity … All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.” (Examining Officers under the Terrorism Act 2000 pdf)

The advice points out that “The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers.”

This may seem somewhat bizarre: a crucial anti-terrorism power that needs not even the tiniest scintilla of evidence of a person’s involvement in terrorism before it is operated against that person; and a clear acknowledgment that, for the most part, the examining officer will be wasting his own and the traveller’s time.