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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.

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UK court backs security ban on anonymised telephone calls system

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A UK court has upheld the Government’s right to ban commercial marketing of a money-saving telephone service on security grounds because it could provide anonymity for callers. The service uses “GSM gateways” that can reduce call charges by rerouting calls through mobile phone SIM cards – but it also allows users to make anonymous calls, potentially avoiding government surveillance.

The Court of Appeal refused to award companies damages for a government licensing system that in effect bans the GSM gateway services they offered and largely halted their business.

Lord Justice Richards said: “Since the time when the existence of GSM gateways first came to light in 2002, the Home Office has maintained that the exemption of commercial operators of such gateways from the licensing regime would be seriously detrimental to public security.” He explained the system thus:

“When a call is routed through a GSM gateway, the caller line identification of the party originating the call is replaced by that of the SIM card in the GSM gateway, so that the identity of the originating caller is masked. This is said to give rise to serious public security concerns for law enforcement agencies in relation to the investigation and prevention of terrorism and serious crime.” (Recall Support Services Limited et al v Secretary of State for Culture, Media and Sport [2014] EWCA Civ 1370 para 9.)

Recall Support Services and five other firms sought to challenge the ban under a European Union law to encourage the telephony sector to develop. They had originally claimed £415m in damages for alleged losses as a result of the UK Government’s maintenance of a restriction on the commercial use of GSM gateways despite a European Commission directive intended to free up telephony services. Read the rest of this entry

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

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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.

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