5 Dec 2014

Mass surveillance by GCHQ ‘is lawful’, tribunal finds

Privacy campaigners vow to take their case to the European court after a secret tribunal rules that GCHQ mass surveillance techniques are lawful and not in breach of human rights.

Britain’s legal framework that governs mass surveillance used by the security services is lawful and does not violate human rights, a tribunal has decided, in a ruling privacy campaigners warn is “deeply troubling”.

The Investigatory Powers Tribunal, which investigates complaints made against GCHQ, MI5 and MI6, has ruled against privacy campaigners who claimed that surveillance techniques used by the security services may have breached human rights laws.

Amnesty, Liberty and Privacy International argued that GCHQ’s methods breached article 8 of the European Convention on Human Rights (ECHR), the right to privacy, as well as article 10, which protects freedom of expression.

The civil liberties organisations feared their private communications were monitored under GCHQ’s electronic surveillance programme Tempora and that information obtained through Washington’s Prism programmes may have been shared with the British intelligence services, sidestepping the UK legal system.

In defence documents released during the trial, the British government’s most senior security official, Charles Farr, explained how searches on Google, Facebook, Twitter and YouTube, as well as emails to or from non-British citizens abroad, could be monitored legally by the security services without obtaining a warrant because they were deemed to be external communications.

It had raised suggestions that tribunal may be less sympathetic to the government’s line which it has vehemently maintained since the Snowden revelations first broke in May 2013.

But on Friday a written judgment, a panel of IPT judges said: “We have been able to satisfy ourselves that as of today there is no contravention of articles 8 and 10 by reference to those systems.”

The note did however suggest an element of uncertainty as to whether the systems were legal in the past. “We have left open for further argument the question as to whether prior hereto there has been a breach,” the ruling said.

‘Now to Europe’

Campaigners are understood to be furious with the decision. Some point to the fact that the IPT, which holds many of its hearings in secret, has never upheld a complaint made against the security services in the 14 years of its history.

They now plan to lodge an application to the European Court of Human Rights (ECHR) to appeal the decision.

Amnesty UK’s legal adviser, Rachel Logan, said: “The government’s entire defence has amounted to ‘trust us’ and now the tribunal has said the same. “Since we only know about the scale of such surveillance thanks to Snowden, and given that ‘national security’ has been recklessly bandied around, ‘trust us’ isn’t enough.”

James Welch, legal director for Liberty, which also intends to appeal to the ECHR, said: “So a secretive court thinks that secret safeguards shown to it in secret are an adequate protection of our privacy. “The IPT cannot grasp why so many of us are deeply troubled about GCHQ’s Tempora operation – a seemingly unfettered power to rifle through our online communications.”

Eric King, deputy director of privacy campaign group, Privacy International said: “The idea that previously secret documents, signposting other still secret documents, can justify this scale of intrusion is just not good enough, and not what society should accept from a democracy based on the rule of law.”

Home Secretary Theresa May said the judgement made “absolutely clear” that the surveillance legal structure was “lawful and in line with human rights obligations”.

She added: “As with all legislation, it is important that we keep the basis for these powers under review. That is why parliament has asked the Independent Reviewer of Terrorism Legislation, David Anderson QC, to undertake a review of investigatory powers and their regulation.”